Sanctions Guidance, second consultation response

This is Behind the Gown’s second response to the BTAS proposed Sanctions Guidance, September 2021.

1.    Do you consider the specific factors for the 13 Misconduct Groups in Part 2 are appropriate and do you have any suggestions for change?

Behind the Gown campaigns against abuse of power, particularly conduct which involves sexual harassment and bullying. As such we have focused our attention on misconduct groups ‘Misconduct of a sexual nature’ and ‘Discrimination, non-sexual harassment and bullying’.

We suggest that ‘planning’ should be a ‘culpability’ factor within the Misconduct of a sexual nature misconduct group. Whilst ‘planning’ is a factor within the general culpability factors, its inclusion within the specific group increases the likelihood that premeditated conduct affects sanction.

2.    Do you consider that the general factors set out at Part 3 Annex 2 are appropriate and do you have any suggestions for change?

Yes; no.

3.    Do you consider that the sanctions ranges for the additional groups listed above are appropriate and proportionate?

Generally, yes. However, one observation we wish to raise relates to the sanctions range for the Criminal Convictions Group. Once a barrister has a criminal conviction, we consider that this should attract a suspension. Imposing a fine whilst allowing the barrister to continue to practise raises justified concern around public trust and accountability, particularly for criminal barristers. Has BTAS considered how other regulatory bodies sanction for criminal convictions? Anecdotally, job application forms often ask applicants whether they have criminal convictions, and the presence of a conviction may inhibit an application progressing.

4.     Is the length and detail of the Guidance appropriate to support effective and consistent sanctioning decisions?

The following are suggestions which may help reduce the length of the “General Guidance”, and ensure that it focusses on the key elements of sanctioning:

·         Insert the flowchart at page 55 after page 19 as an illustration of the methodology set out within ‘Section 3’;

·         Annex pages 19 – 28. Not all of the issues set out in Section 4 will be relevant to each sanctioning exercise, therefore, these factors should be annexed and referred to by Panels as and when they apply;

·         Annex costs.

5.    Are there any areas of the Guidance where the content could be reduced, or maybe added to, without impacting on its overall effectiveness?

Under Vulnerability, we ask that learning disability is added to the list of factors under paragraph 4.2.

Paragraphs 5.13 and 6.36 of the “General Guidance” state that conditions of practice and training can be imposed on suspensions for sexual misconduct and discrimination. See also paragraph 6.11. Given that CPD and conditions are new to the Sanctions Guidance for sexual misconduct and discrimination -- and to ensure that any risks around a barrister’s return to practice are mitigated, we suggest that CPD and conditions of practice are referred to as available sanctions within the “notes” section of the Misconduct of a sexual nature misconduct group. This will remind Panels that they can impose conditions and CPD where the misconduct warrants it. If conditions and CPD are being introduced, it is vital that Panels harness their use which means that they should be as visible as possible within the Guidance. 

As part of the first consultation, we suggested that misconduct involving abuse of power / authority could mean removing pupil supervisor status. Similarly, the removal of a criminal barrister from the rape and serious sexual offence (RASSO) CPS list may be wholly appropriate following a finding of sexual misconduct. We suggest that examples of conditions / CPD that can be imposed should be added to the Misconduct of a sexual nature misconduct group. Currently drafted, the Guidance advises Panels that they can impose a condition to undertake training or restrictions but does not specify what these are. This creates the risk that they might be under-utilised. Examples of conditions / CPD training courses that Panels can impose would add tangibility to these sanctions as well as transparency. Further, the “Notes” section of the Misconduct of a sexual nature misconduct group states that Panels “should consider whether to notify the BSB…of any concerns about the respondent’s suitability to be a pupil supervisor”. If a Panel does not hold the power to impose a restriction preventing a barrister from being a pupil supervisor but can only notify the BSB about concerns about the barrister continuing as a supervisor then this, we consider, should be made clear in the guidance so that complainants and the wider public can be aware of why a particular sanction may not be imposed.

6.     Do you think the overall Guidance as drafted will be beneficial in promoting effective and consistent sanctioning? If not, what areas of the Guidance do you consider should be adapted, amended or deleted to achieve these aims?

Please see response to question 4.

7.     Are there any issues not covered in the Guidance that you think should be covered?

Please see response to question 5.

8.     Do you consider there are adverse implications arising from the Guidance as drafted for any of the protected groups, as defined by the Equality Act 2010, and what do you consider they are?

We consider that this issue might be better analysed after the Sanctions Guidance is in force. If data collected highlights discrepancies in sanctions between barristers on the grounds of gender, age, race, disability, sexual orientation or other, then there may need to be some calibration.

9.     Do you have suggestions about how the terms of the Guidance could address any adverse impacts or better advance equality of opportunity and foster better relationships between the protected groups and others?

Please see response to Question 8.