9. Reporting Flashcards
Where you are not sure if there is serious misconduct which you should report, what should you do?
. You are obliged to report to the BSB instances of serious misconduct by other barristers
or registered European lawyers. Whether or not misconduct is serious misconduct is a
matter of judgement, which will depend on the particular circumstances. It will ultimately
be for the BSB to decide whether enforcement or other regulatory action is necessary in
the public interest.
If, having considered the factors and circumstances discussed below,
you remain unsure whether or not the behaviour in question amounts to serious misconduct, you should err on the side of caution and make a report to the BSB.
Can discrimination be serious misconduct?
Yes.
There are several forms. These are:
* Direct discrimination – where someone is treated less favourably than another
person because of a protected characteristic.
- Associative discrimination – this is direct discrimination against someone
because they are associated with another person who possesses a protected
characteristic. - Discrimination by perception – this is direct discrimination against someone
because others think that they possess a particular protected characteristic.
They do not necessarily have to possess the characteristic. - Indirect discrimination – this can occur when a rule or policy that applies to
everyone disadvantages a person with a particular protected characteristic. - Harassment – this is behaviour that is deemed to be offensive by the recipient.
Recipients can now complain about behaviour that they find offensive even if it is
not directed at them. - Victimisation – this occurs when someone is treated badly because they have
made or supported a complaint or grievance under this legislation.
In respect of reporting serious misconduct and potential victimisation, what should you keep in mind in respect of junior members of the bar?
You should also take account of the fact that pupil barristers and barristers of fewer
years’ standing may be particularly vulnerable due to their relatively junior status and
their relative dependence on more senior barristers for work, guidance and support.
Pupils or new entrants to the profession may worry that by reporting to the BSB they will
subsequently be treated less favourably or otherwise subjected to unwanted conduct, or
that their career may be impacted negatively (whether or not such concerns are well
founded in particular instances).
Where you are a pupil or relatively new to the profession, what may you wish to do before reporting serious misconduct?
If you are a pupil barrister, or relatively new entrant to the profession, who has become
aware of behaviour potentially amounting to serious misconduct, you may wish first to
discuss your concerns with relevant colleagues, with your supervisor, the head of
chambers or head of legal practice. You may wish to establish whether any other person
is aware of the misconduct in question and/or whether that individual is willing to report
the misconduct, or has already done so. You do not need to make a report yourself if
you reasonably believe that another person has already done so. You can also contact
the Bar Council’s Ethical Enquiries Helpline for further assistance.
If the matter relates to conduct which affects you personally, do you still remain under an obligation to report misconduct?
Yes.
If the matter relates to conduct which affects you personally, you still remain under an
obligation to report serious misconduct to the BSB. However, the BSB will treat any
report of discrimination, harassment (whether of a sexual nature or otherwise), or
victimisation as sensitively as possible and will not act without first consulting the person
who has been affected. Given the sensitivity of this issue, the BSB has a policy of not
taking enforcement action for failing to comply with the duty to report if you may have
been the subject of these types of misconduct. Nevertheless, we would encourage you
to report matters to the BSB and we will always treat such reports sensitively.
What should you do where you are in doubt as to whether particular behaviour amounts to serious misconduct?
If you are in doubt as to whether or not particular behaviour amounts to serious
misconduct you should consider discussing this with the Bar Council’s Ethical Enquiries
Helpline (see above). It is important to be aware that by reporting what you believe may
be serious misconduct simply puts the BSB in a position to decide what action, if any, to
take by making a fair assessment as to whether or not serious misconduct (or any
misconduct) has in fact occurred. Action will only be taken in relation to the barrister or
lawyer concerned where this is appropriate, proportionate and in accordance with the
BSB’s policies.
How shoudl you report serious misconduct?
- You should report serious misconduct to the BSB’s Contact and Assessment Team by
completing the online form on the ‘reporting concerns’ section of the BSB’s website –
there is an option on the online form for reports of serious misconduct. - Using the online form is the best way to report your concerns. However, if you do not
wish to report using the online form, you have any access requirements or you would
first like advice on the reporting process, please contact our Information Line on 020
7611 1445.
When (i.e. what timeframe) should you report serious misconduct by?
- You should make a report to the BSB as soon as reasonably practicable. You will
receive an acknowledgement of receipt of the report, including an explanation of how
the BSB will handle the information we receive. Our Contact and Assessment Team will
assess the report you have made and decide what the initial regulatory response should
be. This may include sending for enforcement action, or passing the information to our
Supervision Team.
Can the BSB request assistance after your report?
- Please note that, while the BSB would not normally stay in contact with you once you
have made a report and it has been acknowledged, the BSB may request your
assistance in supplying further information if it is necessary to carry out a proper
assessment of the information or an investigation. All reports made to the BSB will be
treated sensitively. If you wish to provide information confidentially, we may be able to
take reasonable steps to protect your identity. However, depending on the facts of the
case, it may be difficult to take enforcement action without identifying you
What should you consider before making a report to the BSB?
- You should also apply your professional judgement to whether there has been serious
misconduct. Guidance C97 sets out some matters you should consider before reporting.
These are:
* whether the individual’s instructions or other confidential matters might have a
bearing on the assessment of their conduct;
* whether the person concerned has been offered an opportunity to explain their
conduct, and if not, why not;
* any explanation which has been or could be offered for that person’s conduct;
* whether the matter has been raised, or will be raised, in the litigation in which it
occurred, and if not, why not. - Depending on the nature of the misconduct, you may also wish to take further
circumstances into account. In particular, you should consider whether there is a risk
that the misconduct will continue or be repeated if no action is taken. For example, if the
individual’s behaviour relates to discrimination, harassment, victimisation, there may be
a further risk of discrimination, harassment or victimisation occurring in the future (see
below). - Having taken into account these and any other relevant circumstances, you should then
go on to consider whether you have reasonable grounds to believe the individual has
committed serious misconduct. You should report misconduct where you have material
before you which as it stands establishes a reasonably credible instance of serious
misconduct. Issues of competence will not normally constitute serious misconduct
unless so serious that it poses a serious risk to the public or would diminish the trust and
confidence which the public places in the profession.
Where a barrister is acting in a judicial capacity, are they required to report to the BSB?
No. Serious misconduct before the court will usually be apparent to the judge, and in such
cases, the judge hearing the matter may bring the serious misconduct in question to the
attention of the BSB. If you are a barrister acting in a judicial capacity, your conduct
duties as a judge take precedence over your professional duties as a barrister. The BSB
would not expect to take enforcement action against a barrister acting in a judicial
capacity. Whilst the obligation to report does not impact on a barrister sitting in a judicial
capacity, nothing in this guidance should be taken as preventing barristers from
reporting to the regulator serious misconduct observed by a barrister, when sitting, in the
normal way.
