Sukul v Bar Standards Board (2014) Queens Bench Division, 2 October 2014 (unreported)In this yet to be reported case, the High Court suggested that registrants should be given the opportunity to make
Sukul v Bar Standards Board (2014) Queens Bench Division, 2 October 2014 (unreported)
In this yet to be reported case, the High Court suggested that registrants should be given the opportunity to make further representations where there is a risk of being struck off the appropriate register (or, in this instance, disbarred).
S was accused of bringing the profession into disrepute by (i) intentionally misleading his client into believing that he had grounds to appeal against his conviction by settling grounds of appeal that he knew were hopeless and (ii) S recklessly misled the Court of Appeal by failing to notify the court that there were no grounds of appeal. S was absent from the disciplinary hearing due to his emigration from the UK and the lack of video link facilitates. The disciplinary tribunal of the Bar Standards Board (BSB) disbarred S. On appeal S argued that, because it was considering disbarment, the tribunal should not have proceeded to sentence without properly giving him the opportunity to make representations in mitigation and should even have considered adjournment in the circumstances.
In allowing the appeal and relisting the sanction hearing before a different BSB tribunal, the High Court highlighted that the breaches of Section C of the Bar Code of Conduct (a barrister's duty to ensure they do not make submissions or draft documents that are not properly arguable) can vary widely. Despite affirming the serious nature of the conduct, the court did not consider it to be of the highest severity. It could not be said that S's conduct was necessarily at the top of the range of behaviour within the code of conduct. S's disbarment was not necessarily wrong, but the tribunal should have at the very least considered whether S should have been allowed to make representations.
The decision raises noteworthy questions about the right to a fair hearing at common law and under Article 6 ECHR. It will be interesting to see whether the full judgment gives an opinion on wider questions about whether regulators in general have a positive duty to give registrants the right to make further representations at sanction stage and whether any such duty extends to lesser sanction, or whether this is a decision that will be confined to its own facts.
In this yet to be reported case, the High Court suggested that registrants should be given the opportunity to make further representations where there is a risk of being struck off the appropriate register (or, in this instance, disbarred).
S was accused of bringing the profession into disrepute by (i) intentionally misleading his client into believing that he had grounds to appeal against his conviction by settling grounds of appeal that he knew were hopeless and (ii) S recklessly misled the Court of Appeal by failing to notify the court that there were no grounds of appeal. S was absent from the disciplinary hearing due to his emigration from the UK and the lack of video link facilitates. The disciplinary tribunal of the Bar Standards Board (BSB) disbarred S. On appeal S argued that, because it was considering disbarment, the tribunal should not have proceeded to sentence without properly giving him the opportunity to make representations in mitigation and should even have considered adjournment in the circumstances.
In allowing the appeal and relisting the sanction hearing before a different BSB tribunal, the High Court highlighted that the breaches of Section C of the Bar Code of Conduct (a barrister's duty to ensure they do not make submissions or draft documents that are not properly arguable) can vary widely. Despite affirming the serious nature of the conduct, the court did not consider it to be of the highest severity. It could not be said that S's conduct was necessarily at the top of the range of behaviour within the code of conduct. S's disbarment was not necessarily wrong, but the tribunal should have at the very least considered whether S should have been allowed to make representations.
The decision raises noteworthy questions about the right to a fair hearing at common law and under Article 6 ECHR. It will be interesting to see whether the full judgment gives an opinion on wider questions about whether regulators in general have a positive duty to give registrants the right to make further representations at sanction stage and whether any such duty extends to lesser sanction, or whether this is a decision that will be confined to its own facts.