We always use the same four stage process to ensure that we deal with all enforcement action against barristers fairly.
The Contact and Assessment Team will carry out an initial assessment. This assessment will include assessing if enforcement action might be needed. The assessment will consider if:
- the barrister, or other person we regulate, may have broken a rule in the BSB Handbook;
- there is anything which would prevent the concern from being investigated fairly; and
- the risk the concern presents is potentially serious enough for us to carry out a formal investigatation.
We will usually tell everyone concerned the outcome of our initial assessment within eight weeks.
If we decide that we should carry out a formal investigation, the Contact and Assessment Team will pass the case on to our Investigations and Enforcement Team. We will also send the barrister or other person we regulate a summary of the issues we will be investigating.
Our Investigations and Enforcement Team will carry out a formal investigation. We will write to the barrister, or other person we regulate, and any other people who can provide information, asking for their comments and any relevant documents they can provide.
This step usually takes about six months from the date we decide to investigate the concern, although it can take longer if the issues are complicated or we need to wait for the outcome of court proceedings.
Once we have all the information we need, we look at whether there is enough evidence that the rules have been broken and the risk is high enough for enforcement action to be taken. We also consider whether the concerns are ones that the Investigations and Enforcement Team has the power to make a decision on. The Investigations and Enforcement Team only have the power to decide to take no action and to impose administrative sanctions (a written warning or a fine up to £1,000 for an individual barrister).
If the Investigations and Enforcement Team does not have the power to decide the outcome of a case, it will be passed to a five-person panel of our Independent Decision-making Body to make a decision. Nearly all decisions to refer cases to disciplinary action will be taken by a panel of the Independent Decision-making Body.
Where we have passed a case on to the Independent Decision-making Body, they will assess whether there is enough evidence to show that the barrister, or other person we regulate, has not followed the rules and decide what action to take, if any. They might decide to impose an administrative sanction or, if the issue is more serious, they could pass it on to a disciplinary tribunal or to the determination by consent procedure for a decision on whether the barrister, or other person we regulate, has committed professional misconduct.
If the barrister, or other person we regulate, agrees, the Independent Decision-making Body can make decisions on some charges of professional misconduct. They only do this where the barrister does not dispute what happened and the conduct is not serious. If the Independent Decision-making Body is satisfied that the rules have been broken, they can make a decision to:
- fine them;
- impose conditions on their licence or authorisation to practise;
- reprimand them;
- advise them about their future conduct; or,
- order them to complete continuing professional development.
We call this “Determination by Consent” because the barrister must agree to the Independent Decision-making Body making a decision in their case. For more information, see determination by consent.
If the matter is more serious, or the barrister disputes what happened, we pass the case on to a Disciplinary Tribunal. It usually takes a few months to arrange the tribunal hearing.
Disciplinary Tribunal hearings are arranged by an independent organisation called the Bar Tribunals and Adjudication Service (BTAS). At the hearing we try to prove the charges of professional misconduct against the barrister or other person we regulate. We do not act on behalf of the person who reported the concern, but as the regulator of the profession. We therefore make the decisions about what charges to bring against the person, and what evidence to present. At the Tribunal, the barrister (or other person we regulate) has the opportunity to present evidence in their defence.
If a matter does go to a Disciplinary Tribunal, the person who reported the concern may need to appear as a witness. For more information about that, see appearing as a witness at a tribunal.
The Tribunal will make the final decision on whether the barrister (or other person we regulate) has committed professional misconduct and what action should be taken. They may decide to give them a fine of up to £50,000 or suspend them for a period of up to three years. In the most serious cases, they may decide to stop that person being a barrister entirely (this is called “disbarment”) or stop them working for anybody we regulate, (this is called “disqualification”).
We will tell the person who reported the concern what the Tribunal decided.
Disciplinary tribunals usually take place within 12 months of us receiving the report about a concern, but it can take longer. For more information about that, see the disciplinary tribunals process.
