25 June 2019

The disciplinary tribunal process

After we have investigated a complaint, if the matter is serious enough we may pass the case on to the Bar Tribunals and Adjudication Service (BTAS). BTAS is an independent organisation that arranges the disciplinary tribunals. It usually takes a few months to arrange the disciplinary tribunal hearing and they usually take place within 12 months of us receiving the complaint, but it can take longer.

Disciplinary tribunals are made up of a panel of three or five people, who can be barristers, lay people (non-legal professionals) and sometimes judges. All panels will include at least one lay person. We will decide in each case whether the disciplinary tribunal panel dealing with the case should have three or five people, depending on how serious the case is. A panel made up of five people has more options available when sentencing than a panel of three people has.

When we pass a case on for a disciplinary tribunal, we will ask a prosecutor to represent us at the hearing. We maintain a group of prosecutors for this purpose.

If you want to know more about the process of a complaint through to a disciplinary tribunal, or through what is known as the "Determination by Consent" procedure, please see the Making a complaint and Facing a complaint leaflets.

 

Types of disciplinary tribunals


There are two types of disciplinary tribunal - three-person panels and five-person panels. We will decide which type of panel to send the case to depending on how serious the case is. Both panels follow the same process, but the sentences they can hand out are slightly different.

 

Three-person disciplinary tribunal


A three-person tribunal is made up of:

  • A chair (usually a Queen's Counsel, but sometimes a judge)
  • A barrister member and;
  • A lay person

The most serious sentence a three-person panel can give a barrister is suspending them from practise for up to 12 months (or for three months if the conduct happened before 6 January 2014).

The sanctions (penalties) a three-person panel can give out to a barrister, or other person we regulate, include any, or a combination of, the following:

  • Take no further action (impose no sanction)
  • Give advice
  • Warn them about their behaviour
  • Make them complete further professional development training
  • Order them to pay a fine of up to £50,000 (or £15,000 for conduct occurring before 6 January 2014)
  • Ban them from carrying out public access work, which is accepting work directly from members of the public without the involvement of a solicitor and/or;
  • Suspend them for up to 12 months (or three months if the conduct happened before 6 January 2014)

If we refer a case to a three-person panel, but that panel thinks that a sanction of more than 12 months' suspension (or three months' suspension for conduct that happened before 6 January 2014) may be appropriate, the panel can send the case to a five-person panel for sentencing.

 

Five-person disciplinary tribunal


A five-person tribunal is made up of:

  • A chair (always a judge)
  • Two barristers and;
  • Two lay people

A five-person panel has the same sentencing powers as a three-person panel, but can also:

  • Suspend the barrister, or other person we regulate, for any period of time or;
  • Disbar/disqualify the barrister, or other person we regulate

For more information about the sanctions available to disciplinary tribunals, see the Sentencing Guidance issued by BTAS. You can find the Sentencing Guidance on the BTAS website or on our website.

 

Reasonable adjustments

 

The Bar Standards Board will make any reasonable adjustments that may be needed in relation to any aspect of your attendance. Please ask the Bar Standards Board's Case Officer if you need any other details including directions and transport routes either to the venue or to the place from where you will be attending if you are doing so by video-link. You should tell the Case Officer if you have a disability that means you will need help in getting to the hearing or the video-conference suite or moving about the building in which the hearing takes place or from where you will give evidence.

If you are unable to attend the hearing on the day because you are too ill or an emergency has arisen, please contact the Case Officer as quickly as possible to let them know.

 

The disciplinary tribunal process

 

The disciplinary tribunal process has the following four stages:

  • Stage one − letting people know the charges and giving them the bundle of supporting documents
  • Stage two − agreeing the timetable for the case
  • Stage three − agreeing the date for the disciplinary tribunal hearing
  • Stage four − the disciplinary tribunal hearing

Each stage is explained in more detail below.

 

Stage one − letting people know the charges and distributing the supporting documents

 

We will confirm which rules and/or duties we think the barrister, or other person we regulate, has broken. These are presented as written charges (allegations) which are listed on a formal charge sheet. Each charge sets out the way in which we think they have broken the rules and/or duties. There is no limit to the number of charges that can be included on a charge sheet.

The charge sheet is sent to them, with all the documents we consider relevant to prove the charges. The charges will usually be given to them within ten weeks of our decision to send the case to a disciplinary tribunal.                        

The documents to support the case will usually be sent at the same time. However, in some cases, the documents may be sent at a later date if there are problems getting documents.

 

Stage two − agreeing the timetable for the case

 

The second stage involves agreeing a timetable for the disciplinary tribunal. The timetable is set out in the form of 'directions', which will usually include:

  • A deadline for the barrister, or other person we regulate, to provide a statement and documents about their defence
  • A deadline for the barrister, or other person we regulate, to state when he or she is available for the hearing and;
  • The estimated length of the hearing

We try to agree the directions with the barrister, or other person we regulate. If they agree with the proposed directions, the case will go ahead in line with the agreed timetable.

If they do not agree with the directions, a Directions Judge will need to decide what directions are appropriate and, if necessary, the Directions Judge may decide that there needs to be a hearing. In some cases, the barrister, or other person we regulate, may also want to explain to the Directions Judge that he or she thinks that some, or all, of the charges should be dismissed before the disciplinary tribunal hearing because they believe that the charges are wrong in law or cannot be proved.

The Directions Judge will decide whether a hearing is needed to agree directions, based on written statements from us and the barrister, or other person we regulate. After considering the statements, the Directions Judge can decide that:

  • A directions hearing is not necessary and set appropriate directions or;
  • A directions hearing should take place

 

What happens at a directions hearing?

 

The hearing is held in private and the complainant cannot attend.

Along with the barrister, or other person we regulate, we will have the chance to put forward arguments about the directions or about whether the charges should be dismissed. In most cases, the Directions Judge will make a decision at the hearing. In some cases, the judge may decide to issue a written judgment, particularly when they have made a decision on whether or not the charges should be dismissed. If this happens, it may be a number of weeks before the written judgment is available. As directions hearings are held in private, the judgment will not be made publicly available.

 

Stage three − agreeing the date of the disciplinary tribunal hearing


The third stage of the disciplinary tribunal process is deciding when the disciplinary tribunal hearing should take place. This is sometimes decided at stage two but in many cases the date for the hearing will be decided by BTAS based on availability. Sometimes there are delays and we might need to ask a judge for more directions about how to move forward. In many cases, the date for the disciplinary tribunal hearing is decided after the directions have been agreed and sometimes BTAS may need to set the date for the hearing without knowing whether the defendant will be available.

As the complainant does not formally take part in the disciplinary proceedings, we will not check the complainant's availability before the hearing date is set, unless the complainant is needed as a witness. However, we will try, as far as possible, to take account of any reasonable concerns the complainant has about the hearing date.

 

Stage four − the disciplinary tribunal


BTAS will tell the barrister, or other person we regulate, the date, time and place of the hearing. We will tell the complainant so that they can attend the hearing if they want to.

Disciplinary tribunals are normally held in public (unless the Directions Judge or the disciplinary tribunal has decided that the hearing should take place in private). Details of the hearing will be posted on the BTAS website once the hearing date has been confirmed.

The standard of proof is the level of evidence and amount of certainty that the tribunal need to find a charge proved. The standard that is applied will depend upon when the conduct in the charges took place. For conduct before 1 April 2019 the tribunal uses the criminal standard of proof (beyond reasonable doubt). For conduct after 1 April 2019 it uses the civil standard of proof (balance of probabilities).

The disciplinary tribunal will usually start with the Clerk to the Tribunal reading out the charges and asking the barrister, or other person we regulate, to admit or deny them. If they admit all the charges, the case will usually proceed straight to sentencing.

If they deny all or any of the charges, we will present our case, including calling any witnesses to give evidence. We are normally represented by a barrister acting on our behalf. The defendant, or their representative, will then have the chance to present the defence and call witnesses.

After both sides have presented their cases, the disciplinary tribunal panel will decide whether the charges are proved. The members of the tribunal panel will go into a private room to discuss the case and make the decision. This can take a number of hours if the case is complicated.

After the tribunal panel has made its decision, the panel will return to the hearing room to announce its decision.

 

Sanction


If the barrister, or other person we regulate, admits the charges, or the tribunal panel finds them proved, the disciplinary tribunal has to decide what penalty, if any, is appropriate. We will give the tribunal panel details of any previous disciplinary findings against them, and will also refer them to any relevant sections of the Sanctions Guidance issued by BTAS. You can find this document on our website or BTAS's website.

The barrister, or other person we regulate, will then be able to present any information that the tribunal should take into account when deciding on the sentence. The tribunal panel will, again, go into a private room to decide the appropriate sanction.

A disciplinary tribunal will normally announce its decision at the hearing, but the panel may decide that written reasons should be provided after the hearing. If this happens, it could take several weeks before the reasons are available.

 

Frequently asked questions


What action have you taken on the complaint before referring it to a tribunal?


We will have carried out an investigation to make sure there is enough evidence to show that the barrister, or other person we regulate, has not complied with their professional obligations. These obligations are set out in the BSB Handbook (for conduct that happened before 6 January 2014, the obligations are set out in the Code of Conduct 8th Edition). Where a barrister, or other person we regulate, has not met their obligations, we have a range of options available to deal with the situation and we will not always take disciplinary action. However, where there has been a serious breach of the Handbook, we will consider referring the case to an independent disciplinary tribunal. You can see the BSB Handbook, containing the Code of Conduct which barristers must keep to, on our website.

 

What is an independent disciplinary tribunal?


Disciplinary tribunals are arranged by an independent organisation called the Bar Tribunals and Adjudication Service (BTAS). It appoints members of disciplinary tribunals and arranges hearings. We have no influence over the members chosen to hear disciplinary cases or the decisions they make.

Tribunal panels are made up of barristers, independent lay people (people who are not from the legal profession) and sometimes judges. All tribunal panels will include at least one lay person. Lay people are members of the general public who have qualities and experience that make them suitable to hear disciplinary cases and be unbiased.

 

Can someone who has made a complaint take part in the tribunal hearing?


The person who has made the complaint (the complainant) will not be directly involved in the disciplinary proceedings, unless he or she has to be a witness in the case. This is because we are responsible for taking action against a barrister, or other person we regulate, who might have breached their professional obligations. Therefore, we will decide what charges (allegations) of professional misconduct to bring against the barrister.

We will make sure that a complainant is kept informed of the progress of any disciplinary proceedings arising from their complaint by providing the date of the disciplinary tribunal hearing and informing them of the outcome of the hearing. Disciplinary tribunals are usually held in public and anyone, including the complainant, can attend.

 

Are disciplinary tribunals' decisions published?


Yes. The disciplinary tribunal makes the final decision on whether or not a barrister, or other person we regulate, has breached their professional obligations and is guilty of professional misconduct. If a barrister is found guilty of professional misconduct, BTAS will publish the finding on its website.

A record of the finding will also be included in the formal disciplinary record of the barrister, or other person we regulate, and will be available to any person or organisation asking us for details of disciplinary findings against them.

 

Can there be an appeal against a disciplinary tribunal decision?


Yes. The barrister, or other person we regulate, can appeal against the finding and/or sentence imposed by a disciplinary tribunal. Appeals are made to the High Court. We will tell the complainant if the barrister, or other person we regulate, appeals and let them know the final outcome.

We can also appeal the decision of a disciplinary tribunal but only in limited circumstances and only if the Chair of the Professional Conduct Committee agrees.

 

Contact Details

 

If you have any questions about the disciplinary tribunal process, please contact our Investigations and Hearings Team or BTAS.

 

Bar Standards Board

Investigations and Hearings Team
Bar Standards Board
289-293 High Holborn
London
WC1V 7HZ
Phone: 020 7611 1444
Website: www.barstandardsboard.org.uk

 

Bar Tribunal and Adjudication Service

First floor
9 Grays Inn Square
London
WC1R 5JF
Phone: 0203 432 7350
E-mail: info@tbtas.org.uk
Website: http://www.tbtas.org.uk/