• Reporting Serious Misconduct of Others Guidance (October 2019)

Question 1

Obliged to report serious misconduct.

Whether it is serious misconduct is a matter of judgment.

Examples of serious misconduct:

Answer 1

1. dishonesty (CD3);
2. assault or harassment (CD3 and/or CD5 and/or CD8);
3. seeking to gain access without consent to instructions or other confidential information relating to the opposing party’s case (CD3 and/or CD5);
4. seeking to gain access without consent to confidential information relating to another member of chambers, member of staff or pupil (CD3 and/or CD5);
5. encouraging a witness to give evidence which is untruthful or misleading (CD1 and/or CD3);
6. knowingly or recklessly misleading, or attempting to mislead, the court or an opponent (CD1 and/or CD3);
7. being drunk or under the influence of drugs in court (CD2 and/or CD7);
8. failure by a barrister to report promptly to the Bar Standards Board pursuant to rC65.1-rC65.5 (duty to report criminal charges, cautions and convictions, and disciplinary action by other regulators) and/or rC66 (duty to report serious misconduct by others);
9. a breach by a barrister of rC67 (for example, reporting, or threatening to report, another person as a litigation tactic or otherwise abusively; or merely to please a client or any other person or otherwise for an improper motive);
10. conduct that poses a serious risk to the public.

Question 2

Discrimination can constitute serious misconduct. This includes:

Answer 2

• Direct discrimination
• Associative discrimination
• Discrimination by perception
• Indirect discrimination
• Harassment
• Victimisation

Question 3

Barristers must not victimise anyone for

Answer 3

making in good faith a report of serious misconduct.

Question 4

If you are a pupil barrister, who has become aware of behaviour potentially amounting to serious misconduct,

What must you do?

Answer 4

FIRST: 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.

Question 5

When should you report?

Do not need to report where:

Answer 5

1. the relevant facts are already in the public domain; and/or
2. you reasonably consider that those facts will have come to the BSB’s attention; and/or
3. the relevant person has already reported the misconduct to the BSB.

Question 6

Some matters you should consider before reporting. These are:

Answer 6

• 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.

You must never make, or threaten to make, a report of serious misconduct without a genuine and reasonably held belief that the obligation to report applies.

Question 7

Barristers acting in a judicial capacity

Serious misconduct before the court will usually be apparent to the judge, and in such cases,

WHAT HAPPENS?

Answer 7

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.