18 June 2018

Information on the complaints raised by the BSB

Introduction

The Bar Standards Board (BSB) takes a risk based, outcomes-focussed and proportionate approach to all its regulatory activities, including enforcement action. It focuses and prioritises its resources on behaviour which poses the greatest risk to the regulatory objectives and the outcomes set out in the BSB Handbook.

The BSB receives information from a range of sources about potential breaches of the Bar's professional obligations and duties as set out in BSB Handbook (and the previous Code of Conduct).

Formal complaints about the conduct of barristers, or other persons regulated by the BSB, can be submitted by anyone who has concerns about the behaviour of those regulated by the BSB. Such complaints are known as "external complaints" as they come from external sources. However, the BSB also has the power to raise complaints of its own motion where it receives, or has, information about potential breaches of the professional obligations: these are known as "internal complaints".

This page explains the approach the BSB takes to "internal complaints", which are handled by the Professional Conduct Department (PCD) and the Professional Conduct Committee (PCC) of the BSB. 

 

What are internal complaints?

As outlined above, "internal complaints" are those raised by the BSB of its own motion based on information received that indicates there has been a potential breach of the BSB Handbook/the Code of Conduct. Internal complaints can be raised by the BSB about any breach of the Handbook/Code and the decision to raise an internal complaint is solely one for the BSB to take based on the nature of the information received: we will not raise an internal complaint unless there is some evidence of a potential breach.  

 

What types of information can lead to the BSB raising an internal complaint?

There are two main types of information received by the BSB that could lead to an internal complaint being raised:

  • Type 1: Ad hoc information/reports received - the BSB regularly receives ad hoc information from external sources, other than a complainant, that may indicate a breach of the Handbook/Code has occurred. This information comes from a range of sources which includes but is not limited to: media reports; reports of concerns made by people or organisations who wish to bring potential breaches to the attention of the BSB but do not wish to make a formal complaint; or, reports of serious misconduct by barristers under the reporting obligations set out in the BSB Handbook. Information about potential breaches of the Handbook/Code may also come to light during the investigation of an external complaint. All such information is assessed on an individual basis to determine whether an internal complaint should be raised.   
  • Type 2: Internal referrals from other sections of the BSB/Bar Council - a number of sections of the BSB and the Bar Council are responsible for actively monitoring compliance with specific requirements of the Handbook/Code. This includes monitoring compliance with: the Continuing Professional Development (CPD) requirements; the requirements for authorisation to practise; and, the obligations in relation to the equality and diversity provisions of the Handbook. Where other sections of the BSB/Bar Council have been unable to achieve compliance, they will refer the matters to the PCD to consider whether an internal complaint should be raised with a view to enforcement action being taken. Such referrals are assessed on a "class" basis according to the type of breach involved and the risk associated with the "class" of breach based on the BSB's risk framework.

 

What is the process for determining whether information received will lead to an internal complaint?

The process for deciding whether an internal complaint should be raised differs depending on the type of information that has been received by the PCD. There are two processes:  

 

Process 1: Internal complaints based on ad hoc information/reports received

Where ad hoc information is received, before deciding whether an internal complaint should be raised, the PCD will carry out a preliminary assessment of the information to determine whether there is evidence of a potential breach. If there is insufficient, or no evidence of a breach, then no further action will be taken on the information. However, if evidence of a potential breach is revealed by the information, then a detailed risk assessment will be carried out to determine the level of risk the alleged conduct poses to the regulatory objectives and whether the level of risk warrants an internal complaint being raised.

When deciding whether an internal complaint should be raised based on ad-hoc information received, the Assessment Team of the PCD will consider four main issues:

  1. Does the information reveal a potential breach of the BSB Handbook/Code?
  2. Can the information be properly or fairly investigated?
  3. Does the information (or its consequences) indicate an adverse impact on the outcomes set out in the BSB Handbook?
  4. Does the information indicate a risk to the regulatory objectives that is sufficiently serious to justify further action? (The regulatory objectives can be found here).

The PCD assesses the level of risk by means of a standard risk questionnaire which covers, amongst other issues: the circumstances surrounding the conduct; the impact of the conduct on others; and, the previous history of breaches by the individual barrister. The outcome of the risk assessment will result in a risk level being assigned to the information which will determine whether an internal complaint should be raised. 

An internal complaint based on ad-hoc information will normally only be raised where the risk level is medium or high and where all of the following apply:

  1. The information reveals a breach of the Handbook/Code;
  2. Further consideration of the information is  justified in light of the regulatory objectives; 
  3. The information can be fairly investigated and/or the subject of the information can respond fairly to the issues, e.g. the information is not too old to be investigated fairly;
  4. The potential breach, or its consequences, are sufficiently serious and it would be a proportionate use of resources to pursue the matter (i.e. the risk is not low); and,
  5. It is in the public interest to investigate the information in the absence of an external complaint about the matter. 

In some cases, although the information does not justify the raising of an internal complaint, an alternative option may be suitable:

  • Referral to chambers, an authorised body or another person/body - this would be appropriate where the information does not  reveal a potential breach of the BSB Handbook or the risk of the conduct is low  but the information does raise an issue that could be  addressed by the barrister's chambers or an authorised body/another body.
  • Referral to the Supervision team - this would be appropriate where the information is considered to reveal a breach of the Handbook/Code which would be more appropriate to address via supervisory activity as opposed to enforcement action. Normally such referrals will be made in relation to conduct which demonstrates a potential wider problem with the administration of an individual's practice that poses a low or medium risk but could escalate.

 

Process 2: Internal referrals from other sections of the BSB/Bar Council

Types of internal referrals: there are a number of departments of the BSB/Bar Council which are responsible for monitoring compliance with specific requirements of the Handbook. Where a barrister's non-compliance cannot be addressed by other regulatory activity, a referral will be made to the PCD with a view to enforcement action being taken. Examples of such referrals include:

  • Non-compliance with Continuing Professional Development (CPD) requirements;
  • Failure to complete the authorisation to practice process satisfactorily;
  • Failure to publish Equality and Diversity information.

Approach to internal referrals: the approach to referrals from other sections of the BSB/Bar Council is slightly different to that taken to the ad hoc receipt of information from other sources (see above).  Nevertheless, the main issue to be addressed is the same i.e. does the referral reveal a breach of the Handbook/Code that represents a risk to the regulatory objectives that warrants an internal complaint being raised?  The difference lies in the approach taken to determining the risk posed by the conduct as set out below.  

Assessment of risk arising from internal referrals: referrals to the PCD from other sections of the BSB/Bar Council will only be made where the internal section referring the matter believes that a breach of the Handbook/Code has occurred and repeated attempts to achieve compliance have already been made. Given that the nature of the potential breaches will be same for all those who have not complied with the relevant requirements, it is not considered necessary to carry out a detailed individual risk assessment of the individual potential breach in question.  Instead, the PCD relies on the risk priorities identified in the BSB's overarching risk framework to ascertain the risk level appropriate to the conduct. The assignment of a standard risk level at the preliminary assessment stage only indicates that the matter should be raised as an internal complaint and investigated: the decision about the appropriate disposal of the complaint following investigation will be based on the individual circumstances surrounding the breach. 

 

Who takes the decision to raise an internal complaint?

The power to raise an internal complaints ultimately lies with the Professional Conduct Committee (PCC) of the BSB. However, the PCC has the power to authorise others to take decisions on its behalf (see the Complaints Regulations, Part 5 of the BSB Handbook, rE3). The PCC has given express authority to managers in the PCD to raise internal complaints and therefore, in most cases, the decision to raise an internal complaint will be taken by senior staff in the PCD. However, such staff may choose to refer the information to an Office Holder (i.e. the Chair or one of the Vice Chairs) of the PCC either for advice on what action to take or for a final decision to be taken.

For details of the authorisations given to staff please see the BSB's policy on the 'Authorisation of functions/powers under the Handbook', as well as the  'Table of Authorisations').

 

What happens after an internal complaint is raised?

As set out above, in order to raise an internal complaint there must be evidence of a potential breach of the Handbook/Code that presents a potential level of risk that warrants further action. Therefore, once an internal complaint has been raised, it will be referred immediately to the Investigations and Hearings Team of the PCD for formal investigation. 

Thereafter, the process for investigating the complaint is the same as for all complaints whether internal or external. In summary, the main stages of the investigation process consist of: 

  1. Investigation of the complaint by seeking the comments of the barrister or other regulated person and by gathering relevant information from any other people/bodies;
  2. Consideration of all the information obtained during the investigation to determine whether there is sufficient evidence to prove that a breach of the Handbook/Code has occurred;
  3. If there is sufficient evidence of a breach of the Handbook/Code, a review of the risk level in light of the outcomes of the investigation;
  4. A decision as to whether enforcement action is necessary and proportionate based on the risk posed and, if so, what type of action is appropriate; and,
  5. Referral to disciplinary action, if appropriate.

More detailed information on the investigation and post investigation processes can be found here  and here.

 

Further information

If you would like further information about how the PCD deals with internal complaints or any other aspect of the enforcement system, please contact the Professional Conduct Department.