The determination by consent process is voluntary and can only happen if the barrister or other regulated person agrees. It is usually much quicker and often less stressful than a disciplinary tribunal hearing.
To read final reports of past matters dealt with by the determination by consent process, please visit our final reports page.
We have written this information in plain English so that it is easy and quick to read. If you would prefer to read the regulations that set out the procedure, you can do so in the BSB Handbook, Part 5 (the Enforcement Regulations) section A5.
Under this process, an Independent Decision-making Panel will look at the papers to decide whether the barrister in question has broken the rules set out in the BSB Handbook. If it finds that they have, it will decide what sanction to give them. The barrister (or other regulated person) will then be given the opportunity to accept or reject the Independent Decision-making Panel judgement and sanction.
Either a member of staff of the Investigations and Enforcement Team or members of the Independent Decision-making Panel can suggest a case is dealt with by determination by consent. For a case to be dealt with in this way, it must meet these five criteria.
- There is a realistic prospect of a finding of professional misconduct being made;
- There are no substantial disputes of fact;
- It is serious enough that the complaint cannot be dismissed or no further action taken;
- It is in the public interest to resolve the complaint using determination by consent; and
- If the alleged professional misconduct is admitted or proved, it would not warrant a period of suspension, a disqualification order, or disbarment (bearing in mind the barrister’s previous disciplinary history, if any).
For the case to continue under determination by consent, the barrister or other regulated person concerned either needs to admit the charges in full, or to accept the summary of facts but deny that the facts amount to professional misconduct.
The Determination by consent process
If the case is suitable for Determination by Consent, we will write to the barrister and ask whether they agree in principle to the Determination by Consent procedure. They must respond in writing within 14 days to say whether they agree. Reasonable extensions to the time limits can be given if there is good reason - barristers should contact the Case Officer as soon as possible to discuss.
If they do not agree, or do not respond within 14 days, the case will automatically be referred to a three-person disciplinary tribunal unless issues are raised that require further consideration. If they respond and agree to use the Determination by Consent procedure, the case will move to Stage 2.
A Case Officer in the Investigation and Enforcement Team will prepare a draft Determination by Consent report on the case. The draft report will include the following sections:
- Summary of Facts; and
- Previous disciplinary findings.
We aim to serve the draft report on the barrister or other regulated person within 21 days of receiving their written agreement to use the Determination by Consent procedure. They will be asked to respond within 21 days to say whether or not they agree the Summary of Facts and admit the charges. Reasonable extensions to the time limits can be given if there is good reason, such as a work or family commitment, or the need to seek advice. Barristers should contact the Case Officer as soon as possible to discuss any extensions of time.
If they admit the charges, they will be invited to provide any mitigation with relevant supporting documents. Mitigation is information that may help the Independent Decision-making Panel decide on the appropriate sanction. For example, they may explain why they did what they did or explain about their personal circumstances. If they would like the Independent Decision-making Panel to take into account their financial circumstances as part of their mitigation they should provide supporting information and documents.
If the barrister accepts the facts of what happened but deny that they amount to professional misconduct, they will be invited to provide a written explanation (with any supporting documents) as to why.
The Summary of Facts can be amended by agreement - if a barrister wishes to request amendments to the Summary of Facts, they should contact the Officer responsible for the case. If the Summary of Facts is agreed, the case will move to Stage 3.
If the barrister (or other regulated person) does not respond by the deadline, or responds but indicates a significant dispute as to the facts, the case will automatically proceed to a three-person Disciplinary Tribunal unless issues are raised that require further consideration. For the Determination by Consent procedure to continue, the barrister must continue to consent to the procedure, the Summary of Facts must be agreed, and the Independent Decision-making Panel must continue to feel that the case is suitable.
The Investigations and Hearings Team now add the following sections (where appropriate) to the draft report:
- The barrister’s (or other regulated person’s) plea;
- If the charges are denied, a summary of the barrister’s reasons as to why what happened does not amount to professional misconduct; or
- If the charges are admitted, a summary of the barrister’s mitigation.
The draft report will not be sent to the barrister or other regulated person concerned at this stage, but it will be presented to the Independent Decision-making Panel, which can decide to:
- dismiss some or all of the charges of professional misconduct;
- find some or all of the charges of professional misconduct proved;
- if the charges of professional misconduct have been admitted, impose a sanction for each charge; or
- refer the complaint to a Disciplinary Tribunal if the Determination by Consent procedure is no longer appropriate.
The final Determination by Consent report will only be sent to the barrister (or other regulated person) after the Independent Decision-making Panel has decided the charges.
If the charges have been denied, the case will be considered by the Independent Decision-making Panel twice. On the first occasion, the Independent Decision-making Panel decides whether or not the charges of professional misconduct are proved. If they find that they are, we will send the Determination by Consent report to the barrister concerned, which will explain the Independent Decision-making Body's findings and reasons, and ask whether they accept the panel's findings. If the barrister (or other regulated person) does accept them, they will be invited to provide any mitigation (including supporting documents) that they wish the Independent Decision-making Panel to take into account when making the decision on sanction.
The report will be updated to include a summary of the mitigation (if any) and a recommended sanction. It will be presented to the Independent Decision-making Panel for a second time to decide the sanction in respect of the charges.
When the Independent Decision-making Panel has decided on sanction we will send the final Determination by Consent report, which will explain the sanction the Independent Decision-making Panel imposed, to the barrister and ask whether they accept the sanction. If they respond and accept the sanction, the case will move to Stage 4.
If they do not confirm in writing within 14 days that they accept the Independent Decision-making Body's findings and/or sanction, or they reject the Independent Decision-making Body’s decision, the case will automatically be referred to a three-person Disciplinary Tribunal, unless issues are raised which require further consideration by the Independent Decision-making Panel. Again, reasonable extensions to the time limits can be given if there is good reason.
The Independent Decision-making Panel will consider our Enforcement Strategy and take into account the Bar Tribunals and Adjudication Services' (BTAS) Sanctions Guidance. We encourage barristers and other regulated people using the Determination by Consent Procedure to look at it. Under the Determination by Consent Procedure, the Independent Decision-making Panel is able to impose the following penalties:
- order them to pay a fine;
- reprimand them (or order them to attend on a nominated person to be reprimanded);
- give them advice (or an order to attend on a nominated person to be given advice); and/or
- order them to complete further training.
The Independent Decision-making Panel cannot suspend or disbar a barrister or make a costs order against them - these powers are reserved for Disciplinary Tribunals.
If the barrister, or other regulated person, accepts the Independent Decision-making Panel’s finding and sanction, a disciplinary finding will be formally recorded against them as of the date when we receive their written acceptance.
The report and details of the charges, the finding and sanction will be posted on our website. They will remain on the website and available to the public for two years.
If the sanction includes a requirement for the barrister to take action, for example to pay a fine or complete further training, the case will move into the compliance stage. We will tell the barrister what they need to do to comply with the sanction and the deadline for doing so. After they have complied with the sanction, we will close our file and mark the case as complete. Failure to take the appropriate action by the deadline is likely to be treated as professional misconduct and the Independent Decision-making Panel may refer the matter to a Disciplinary Tribunal.
If you wish to discuss any aspect of the Determination by Consent process, please contact our Investigations and Enforcement Team at 289-293 High Holborn, London, WC1V 7HZ. Phone: 020 7611 1444