The Bar Standards Board is ‘alive and well’

The board’s chairman says criticisms that the system regulating barristers is a shambles and not transparent are unfair

On reading his own obituary, Mark Twain famously said: “The reports of my death have been greatly exaggerated.” I have had a similar feeling on reading recent coverage of the Bar Standards Board (BSB), which I can assure readers is in rude health.

In 2011, there were 15,581 practising barristers and 529 were subject to complaints (that’s 3.4 per cent of the practising Bar). Of those, 141 were subject to disciplinary proceedings, or 0.90 per cent.

Last year only 12 disciplinary tribunal decisions were appealed; 72 per cent of barristers who have been complained against say the way the BSB deals with the case against them is “open and fair”. It is probably unsurprising that those who do not consider it fair are more vociferous. However, they are in the minority and it does not mean that the system is broken. Not only that. We are on track with the handling of our cases, with 81 per cent being completed within 12 months — well within the turnaround times required of us. This is impressive given that we are a fairly “new” regulator, established in 2006 to regulate barristers in the public interest.

Our remit includes “handling complaints and taking disciplinary or other action where appropriate”. Accordingly, we take complaints of professional misconduct extremely seriously, employing a robust, three-tiered investigative approach that gives barristers the opportunity to defend themselves properly.

In the first instance, a case officer will investigate the merits of a case. Barristers and complainants know who the BSB case officer is and can and do correspond regularly with him or her. A sponsor member of the Professional Conduct Committee (PCC) will then prepare a fact summary and analysis for the rest of the committee to consider, with the summary later made available to both the barrister and complainant.

These members are given extensive training and guidance, providing them with the information and tools that they need to make informed decisions where, for example, they come across a barrister that they may have professionally encountered previously.

The decision taken by the PCC to refer the case to an independent disciplinary tribunal is taken collectively subject to a lay veto, in a similar fashion to the Crown Prosecution Service.

The charges are then heard in public by an independent tribunal, who will decide whether or not to prosecute. The committee collectively makes the decision to prosecute. It is not and would not ever be appropriate for the process leading to that decision to be made in public, just as people accused of crimes are not part of the decision to lay charges against them and nor does it happen in public.

Barristers are able to be fully represented during all tribunal stages and test all aspects of the complaints against them in that forum. Many barristers do indeed challenge all aspects as part of their defence — as they are entitled to do.

We have also been refining and improving our complaints and disciplinary processes since anomalies in the past appointment procedures of disciplinary tribunal panels by the Council of the Inns of Court (COIC) — the independent body charged with providing and administering tribunal panels — was first brought to our attention in November 2011.

This matter has been and continues to be of huge concern to us; the protection of the public, the barristers involved and the standing of the profession demand the most rigorous disciplinary procedures and I am extremely disappointed that this can and indeed has happened.

While an appeal case this month has confirmed that the expiry of panel member appointment terms does not affect the validity of the decisions taken by these panels, we accept that there may still be problems with a minority of other appointments made by the COIC.

We are therefore actively working with the COIC to ensure everything necessary is being done to resolve these remaining cases and continue to closely monitor their progress.

We also know that the COIC is working on improving its systems and look forward to the publication of its review group report, which is expected shortly.

Over time, the vast majority of appeal and judicial review cases have supported the BSB’s existing procedures. Where we have got it wrong, we have fixed it. We do not shirk from the proper scrutiny by the courts or from balanced and fair criticism. However, the reader will quickly appreciate why recent coverage failed that test.

Baroness Deech is chairman of the Bar Standards Board