Sanctions Guidance consultation response
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Behind the Gown was launched in 2017 following the ripple effect of #MeToo across the globe. #MeToo exposed endemic sexual harassment and abuse of power within Hollywood and many other industries besides. Seizing upon this momentum, Behind the Gown aimed to shine a spotlight on abuse of power in our own profession. www.behindthegown.uk
The Sanctions Guidance review is welcome particularly in relation to misconduct of a sexual nature given the disproportionate impact of sexual harassment on women in the Legal Profession. The links with the retention crisis have been widely publicised.[1]
In formulating this response, Behind the Gown liaised with other barristers to garner their input. This included a Zoom discussion and speaking with V who experienced misconduct amounting to sexual assault by a member of the Bar. V left the Bar - a decision impacted by the consequences of the incident. V’s views have informed this response. An online poll was also carried out.
1. Do you agree that the revised Guidance should remove reference to fine levels for entities regulated by the BSB?
Behind the Gown is neutral on reference to fine levels for entities regulated by the BSB.
2. Do you consider there is a more appropriate alternative to having categories of fines?
No
3. Do you agree that the three categories for fines should be retained in the revised guidance?
Yes
4. Do you agree with the proposed revised financial brackets for each of the fine categories?
Yes
5. Do you agree that a descriptor should be added for each of the fine categories, and do you agree with the proposed descriptors?
It is agreed that descriptors should be added for each of the fine categories. It is suggested that the descriptor for a medium level fine could be more prescriptive, for example, ‘misconduct justifies a significant financial penalty’. ‘Moderately serious’ is a wide definition requiring further specification.
6. Do you agree that the categories for suspension should be reduced to two?
Yes
7. Do you agree that the categories should be up to 12 months and over 12 months?
Yes
8. Do you agree with the general culpability and harm factors as set out at Annex 1?
In general, yes. However, it is suggested that the wording of ‘whether the misconduct was a one-off incident or part of a course of action’ as a factor under culpability should be reviewed. This is because one incident of assault for example is one too many and could be equally if not more blameworthy than a course of action. It ought not to be viewed as less serious simply because it does not form part of a series of potentially differing incidents. To reflect the increased culpability of repeated incidents, it is suggested that the wording be amended to ‘incident sustained / repeated or attempted to be repeated’.
9. Do you agree with the general aggravating and mitigating factors as set out an Annex 1?
Yes
10. Do you agree that the structured approach is appropriate?
Yes
11. Are there any adaptations to the approach you consider should be made?
No, save for the observations outlined in response to questions below.
12. If you disagree with the structured approach outlined above, what approach to imposing sanctions do you consider decision-makers should take?
N/A
13. Should misconduct involving violence, in the absence of a criminal conviction, be included in Behaviour towards others or a separate group?
Behind the Gown is neutral on whether misconduct involving violence in the absence of a criminal conviction appears in the Behaviour towards others misconduct Group.
14. Do you agree with the concept of creating Groups of types of misconduct?
Yes
15. Do you agree with the proposed groups outlined above?
Yes
16. Do you have any suggestions for amendments to the titles of the Groups and/or the intended coverage of each?
It is suggested that the title of the Discrimination and non-sexual harassment Group is amended to ‘Discrimination and Bullying’. Since #MeToo, the prevalence of sexual harassment in politics, acting and the law has received regular exposure. Non-sexual harassment is a less recognised term affecting workplace culture and is perhaps better reframed as bullying. The creation of a hostile, degrading or humiliating environment is a form of bullying in itself and harassment can be recognised within it. Bullying, like sexual harassment, has attracted significant news attention across various industries and exists in hierarchical environments which provide fertility for abuse of power. The Bar is no exception to this. A misconduct group which includes ‘Bullying’ in the title lends transparency and awareness of the issue.
There is a degree of overlap in the intended coverage of some Groups including Discrimination and non-sexual harassment, Behaviour towards others and Use of social media and other digital communications. It is suggested that stalking (currently referred to in Discrimination and non-sexual harassment Group) would be better subsumed in Behaviour towards others, distinct to Discrimination and Bullying. Similarly, it is suggested that misconduct encompassing social media, referred to in the description of Discrimination and non-sexual harassment Group, be covered by Use of social media and other digital communications.
17. Do you agree with the concept of providing the Guidance bands for sanctions within the ranges?
Yes
18. Do you agree with proposed descriptors for the lower, middle and upper bands for each range?
No because it is currently unclear what misconduct reflects ‘significant’, ‘moderate’ and ‘low culpability’ within each range. Significant and moderate are undefined. As such, some panels may consider that certain misconduct reflects significant culpability, others, moderate culpability. Further, how many aggravating factors must apply for misconduct to fall within the upper range? And how many aggravating factors amount to ‘some’ for the middle range to apply? There is scope for panels to arrive at different ranges potentially placing misconduct in a lower range than it should be. It is suggested that factors reflecting greater / lesser harm and higher / lower culpability are set out within the guideline to ensure uniformity with sanctioning.
19. Do you agree with the range for each of the Groups?
Behind the Gown recommends that conditions on practising certificate and CPD should be imposed as sanctions for sexual misconduct in conjunction with a suspension. Annex 2 states that conditions on practising certificate and CPD do not apply to sexual misconduct. The proposed sanction range for sexual misconduct is a 12-month suspension to disbarment. Therefore, once a suspension period ends, the barrister can return to practice unrestricted. This is concerning particularly if no remediation work to tackle predatory behaviours has been done. Behind the Gown considers that a more nuanced approach to sanctioning for sexual misconduct is necessary not just to reflect the harm that this behaviour causes but to promote proper standards of behaviour going forward.
CPD
Certain cases of sexual assault and sexual harassment will warrant completion of relevant programmes to demonstrate that the barrister has addressed concerns raised by their misconduct. For the Nursing and Midwifery Council, a suspended Registrant will have to show insight and remediation before conditions of practice or suspension are lifted. In a similar way we consider that a sanction of CPD requiring attendance on and completion of a relevant programme or training should be added as a condition of a suspension. The same could be imposed following findings of discrimination and bullying, for example, mandatory unconscious bias training.
Conditions on practising certificate
Arguably, there are public confidence issues around a barrister continuing to accept certain types of work following a finding of sexual misconduct. A complainant in a rape trial might be concerned and disillusioned to know that a barrister appearing in their trial has a recent disciplinary finding of sexual assault. In some cases, serious thought should be given to removing a barrister from a CPS RASSO list to ensure public trust in the profession. Similarly, where a complaint of sexual misconduct made by a pupil barrister against a pupil supervisor is upheld, it should be a condition of the barrister’s practice that they do not take on pupils. As part of the research into this response, Behind the Gown spoke with V who experienced conduct amounting to sexual assault by a practising barrister. Following the finding, V questioned why the barrister continued to be marketed as being a leader in their field. We consider that in some cases, a barrister should forfeit their right to be marketed in directories such as the Legal 500 and Chambers and Partners. To continue to be marketed in this way sends a message that one can sustain a professional reputation undimmed despite a finding of sexual misconduct. Whilst Behind the Gown appreciates that the purpose of regulatory sanctioning is not to punish, we consider that a sanction of this nature would act as a further deterrence against engaging in misconduct subject to sanction.
We consider that CPD and conditions on practising certificate are underutilised sanctions. We believe that CPD and conditions should be sanction options for misconduct of a sexual nature. They enable a considered and meaningful response beyond that which suspension and disbarment can cater for, ensuring that the harmful and in some cases long term impacts of sexual misconduct are appropriately dealt with.
20. Do you agree with the specific culpability and harm factors included for each Group? Are there any additional factors that should be included?
Within the Misconduct of a sexual nature Group, Behind the Gown recommends that ‘conduct committed within a professional setting’ is added to the list of culpability factors.
21. Do you agree with the specific aggravating and mitigating factors included in each Group? Are there any additional factors that should be included?
We suggest that ‘Behaviour resulted in a criminal conviction or court order’ listed as an aggravating factor within the Misconduct of a sexual nature Group should not apply to instances of sexual assault or sexual harassment. Whether or not a victim chooses to go to the police to report sexual assault or harassment should not elevate the seriousness of the sanction. To do so would mean that 2 similar instances of sexual assault are sanctioned differently simply because one victim reported the matter to the Police and the other did not. This means that one sanction is more serious than the other, yet the harm caused to each victim might be the same. There are many reasons why a victim does not report the misconduct which amounts to a criminal offence, and this should not be a factor reflected in a lesser sanction.
Of course, there may be some situations where registering as a sex offender is required. In these circumstances, it would be difficult to reconcile a barrister continuing to practise with a court order of this nature in place.
22. Do you agree with where the lower, middle and upper bands for the ranges have been pitched for each Group? Do you consider any adjustments should be made to the bands? Please give reasons.
On the whole, yes, but please see response to question 18.
23. Do you consider that the equality impacts rehearsed above provide a basis for departing from any of the proposals in this paper?
Due to the high-level nature of the equality impacts analysis, no, however, paragraph 100 is interesting.
24. Are there any other equality issues BTAS should take into account when developing further the contents of the Sanctions Guidance?
Potentially the impact on barristers who identify as having a disability.
[1] Bullying and Sexual Harassment in the Legal Profession | International Bar Association (ibanet.org)