Barrister Suspended for Non-Compliance with Court Practice Direction

The Law Society Gazette (UK) reports on 8 November 2023 as to the recent decision of the High Court of Justice in England and Wales (2 November 2023) when a suspension of a barrister was halved on appeal.

Justice Calver of the High Court said:

1. In R v McCook [2014] EWCA 734, the Lord Chief Justice sounded the following warning to criminal law practitioners: “This case illustrates…two matters. First, it is always desirable to consult those who have acted before in a case where fresh counsel and solicitors have been instructed. In R v Achogbuo [2014] EWCA Crim 567 we stated that it was necessary to do so where criticisms of previous advocates or solicitors were made, or grounds were to be put forward where there was no basis for doing so other than what the applicant said. Second, it is clear from this case that we must go further to prevent elementary errors of this kind. In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare.”

2. These highly important requirements demanded of fresh counsel and solicitors who have been instructed in relation to a potential appeal have become known as the McCook obligations.

3. This appeal concerns the appropriate sanction in a case of a reckless failure of counsel to comply with his McCook obligations.

….

57. It follows that the issue in the case boils down to this. Did the Tribunal commit an error in principle in carrying out its evaluative decision on sanction or did its evaluative decision fall outside the bounds of what it could properly and reasonably decide, such that the sanction that it imposed was clearly inappropriate, by reason of its failure to take sufficiently into account the facts, in particular that: (i) the Appellant admitted the key factual elements of the charges that were brought against him; (ii) this was an isolated incident; and (iii) this was not done for gain but rather was motivated by a desire to help the accused.

58. As against this, the Appellant’s behaviour was admittedly reckless; he showed a lack of insight into the seriousness of his misconduct; and the harm caused was serious.

59. I consider that the Tribunal was entirely correct to mark the gravity of the Appellant’s reckless conduct, and the serious harm that it caused, with a suspension from practice. However, despite the factors referred to in paragraph 58 above, I consider that the Tribunal failed to give sufficient weight to the factors in paragraph 57 above and as a result its evaluative decision on sanction fell outside the bounds of what it could properly and reasonably decide. This is a case of moderate culpability and the Tribunal ought to have held that the misconduct in this case fell within the middle range of seriousness rather than the upper range.

60. The Tribunal rightly identified the purpose for which sanctions are imposed by a Tribunal in a case such as the present as being the protection of the public and consumers of legal services and the maintenance of public confidence and trust in the profession, as well as the promotion of high standards of behaviour in the profession. In my judgment, for a case falling within the middle range of seriousness and taking account of the mitigating features in this case, the Tribunal ought to have held that a period of suspension of less than 12 months was appropriate to fulfil that purpose.  

61. Accordingly, I consider that imposing a period of suspension of as much as 12 months was clearly inappropriate in all the circumstances and the sanction which most appropriately fulfils the relevant purpose in the present case is to impose a period of suspension of 6 months.

62. I therefore vary the Tribunal’s order by substituting a suspension of 6 months concurrent on each of the 3 charges found to be proved (1, 3 and 7), instead of the 12 months suspension imposed by the Tribunal. To that extent and that extent only, I quash the Tribunal’s decision.

A link to the EWHC decision is here.