Things Need to Change: Insufficient sanctions for sexual misconduct at the Bar
April 17, 2021
3 min read
What's going on here?
In March 2021 the Bar Council wrote to the Bar Standards Board (BSB) and the Bar Tribunal and Adjudication Service (BTAS) to express their concerns about the handling of cases of sexual harassment among barristers.
What does this mean?
The Council wrote to reiterate concerns they raised in May 2019, since they felt that insufficient improvement had been made since then. These concerns included the “quality of caseworker support available to any complainant”, a request for “clarification on the type of training provided to those on disciplinary panels or involved in judgment drafting” and a request for “greater consideration of the impact on the complainant as part of the process”.
In their most recent letter, the Bar Council communicates concerns shared by “many barristers”, regarding apparent “inconsistency in sanctions based on offence”.
They cite an example of this inconsistency: a barrister who failed to renew a practising certificate received a 4-month suspension, while another barrister who was found to have sexually assaulted two women at a work-related social event, received a lesser sanction of 3 months.
The Bar Council’s correspondence requested transparency as to the figures and progression of sexual harassment cases, as well as asking how the BSB and the BTAS were planning to improve their handling of the investigation and disciplinary process.
In response to the request for information, the BSB disclosed that, between March 2019 and March 2021, it had received twenty-one reports of sexual misconduct. Three of these are still undergoing initial assessment, and fourteen of the remaining eighteen have been “referred for some form of regulatory action”.
What's the big picture effect?
This particular correspondence between the Bar Council and the regulatory bodies holds significance beyond the specific cases it cites.
It raises questions about the relationship between personal and professional behaviour, and the extent to which someone’s career should be impacted by their personal conduct. Some believe that professional and personal personae are inseparable, and thus it is only right for a barrister who behaves inappropriately outside of a strictly professional setting to face professional consequences. However, others are concerned that this can be taken too far, and that people’s private characters should not be subject to professional scrutiny. They argue that there are legal processes in place to deal with criminal behaviour, and beyond that, it should not be the duty of regulatory bodies to sanction people for their behaviour. There have been several other instances that have raised similar issues, such as barristers tweeting inappropriate or offensive messages from private accounts, and finding themselves excluded from their chambers as a result.
It demonstrates the potential danger of the recognised power imbalance which exists between senior barristers and their juniors or pupils. The victims of sexual harassment tend to be younger barristers or pupils, harassed by a senior colleague, who is abusing their position of power. The victims are often afraid to call out inappropriate behaviour, for fear of losing work. The Council’s concerns also reflect a wider belief that professional sanctions faced by solicitors are more severe than those faced by barristers.
It also ties into wider discussions of gender equality and the female experience of the Bar, as the victims of these sexual harassment cases tend to be women. In their correspondence, the Bar Council requested more information about “the composition of the panels in these cases in terms of sex in particular”, suggesting that part of the issue may be attributed to a trend of female under-representation in the world of the Bar. The Council also remind the BSB of their “duty under the Public Sector Equality Duty (PSED) in respect of discrimination”, thus associating the cases with the wider issue of gender discrimination at the Bar.
There is more to this series of correspondence than the matter of dealing with individual instances of inappropriate and unacceptable behaviour. It is about taking the necessary steps to make the Bar a safe and welcoming environment, in which both men and women feel they belong.
Report written by Elizabeth Ambrose
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