22 May 2017

Annexe K - The Disciplinary Tribunals Regulations 2009 (Amended February 2012)

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers.  

Arrangement of Regulations

 

1          Definitions

2          Composition of Disciplinary Tribunals

3          Sittings of Disciplinary Tribunals

4          Clerks

5          Service of Charges

6          Representation of the complainant's interests

7          Documents to be served

8          Convening Orders

9          Directions etc.

10        Provision of Documents

11        Procedure at the Hearing

12        Hearing in Private or in Public

13        Decision of a Court or Tribunal

14        Absence of Defendant

15        Recording of Proceedings

16        Amendment of Charges

17        Adjournment

18        The Finding

19        The Sentence

20        Sentence of Suspension from Practice as a Barrister

21        Power to order that a sentence has deferred effect

22        Power to activate a deferred sentence

23        Wording of the Sentence

24        Report of Finding and Sentence

25        Appeal to the Visitors

26        Appeal - Sum Payable

27        Action by Defendant's Inn

28        Action by the Bar Standards Board

29         Publication of Finding and Sentence

30         Deferment of Sentence pending Appeal

31         Costs

32         Documents - Method of Service

33         Miscellaneous Provisions

34         Exclusion from Legal Aid Work - Application for Termination

35         Citation, Commencement, Revocations & Transitional Provisions

 

1.  Definitions

 

(1)  In these regulations:

 

(a) The "BSB Representative" shall be the person or persons appointed by the Director of the Bar Standards Board to represent the Bar Standards Board ("the BSB") in respect of charges brought before a Disciplinary Tribunal.

 

(b) Other expressions shall have the meanings assigned to them by Part X of the Code of Conduct of the Bar of England and Wales.

 

(2) Anything required by these Rules to be done or any discretion required to be exercised by, and any notice required to be given to, the President may be done or exercised by, or given to, any person authorised by the President (either prospectively or retrospectively and either generally or for a particular purpose).

 

2.   Composition of Disciplinary Tribunals

 

(1) A Disciplinary Tribunal shall consist of either three persons or five persons.

 

(2) A five-person panel shall (subject to paragraph (4) below) consist of the following five persons nominated by the President:

 

(a) as Chairman, a Judge; and

 

(b) two lay members; and

 

(c) two practising barristers of not less than seven years' standing.

 

(3) A three-person panel shall consist of the following three persons nominated by the President:

 

(a) as Chairman, one Queen's Counsel or a Judge; and

 

(b) one practising barrister of not less than seven years' standing; and

 

(c) one lay member.

 

(4) In constituting a panel, the following rules shall be respected:

 

(a) The President shall have regard to (but shall not be bound by) any recommendation by the Professional Conduct Committee that a Judge rather than a QC be appointed to act as Chairman of a three-person panel.

 

(b) If the barrister charged ("the defendant") is an employed barrister, at least one of the barristers nominated to a five-person panel should normally be an employed barrister.

                                                      

(c) In the case of a registered European lawyer, one of the members of a five-person panel shall be a registered European lawyer rather than a barrister.

 

(d) No person shall be nominated to serve on a Disciplinary Tribunal if they

 

(i) are a member of the Bar Council or of any of its committees; or

 

(ii) are a member of the BSB or of any of its committees; or

 

(iii)  were a member of the Professional Conduct Committee of the BSB ("the Professional Conduct Committee ") at any time when the matter was being considered by the Professional Conduct Committee.

 

(e) The President may publish qualifications or other requirements required in those appointed to be barrister or lay members of a Disciplinary Tribunal.

 

(5) For the purposes of this Regulation and of Regulation 9, a Judge includes:

 

(a) a puisne judge of the High Court;

 

(b)  a judge of the Court of Appeal;

 

(c) a Circuit judge;

 

(d) a Recorder who has been requested to sit as a judge of the High Court under section 9(1) of the Supreme Court Act 1981;

 

(e) a deputy judge of the High Court appointed under section 9(4) of the Supreme Court Act 1981; and

 

(f) a person who has been a judge of the Court of Appeal, or a puisne judge of the High Court, or a Circuit Judge, provided that he

 

(i) remains permitted by virtue of section 9 of the Supreme Court Act 1981 to be requested to act as a judge of the High Court, or is eligible for appointment as a deputy Circuit judge under section 24 of the Courts Act 1971; and

 

(ii) has acted as a judge of the Court of Appeal or of the High Court or as a deputy Circuit judge in the last 12 months.

 

(6) If a vacancy in the Disciplinary Tribunal shall arise prior to the substantive hearing of the charge, the President shall select another member of the relevant class to fill such vacancy.

 

(7)  At any time before the commencement of the substantive hearing of the charge, the President may cancel any or all of the nominations made pursuant to this regulation, and make such alternative nominations as in the exercise of his discretion he deems to be necessary or expedient.

 

(8) The proceedings of a five-person panel shall be valid notwithstanding that after the Convening Order has been issued (in accordance with Regulation 8 below) one or more of the members becomes unable to continue to act or disqualified from continuing to act, so long as:

 

(a) the Chairman and at least one lay member remain able to act and are present throughout the substantive hearing; and

 

(b) the number of members present throughout the substantive hearing of the charge is not reduced below three.

 

(9) A member of a Disciplinary Tribunal who has been absent for any time during a sitting shall take no further part in the proceedings.

 

3.   Sittings of Disciplinary Tribunals

 

The President shall appoint Disciplinary Tribunals to sit at such times as are necessary for the prompt and expeditious determination of charges brought against defendants in accordance with the provisions of these Regulations.

 

4.    Clerks

 

The President shall appoint a person or persons to act as Clerk or Clerks to the Disciplinary Tribunals to perform the functions specified in these Regulations and such other functions as the President or the Chairman of any Tribunal may direct. No person who has been engaged in the investigation of a complaint against a defendant in accordance with the relevant procedure or otherwise shall act as Clerk in relation to disciplinary proceedings arising out of that complaint. The President may publish qualifications or other requirements required in those appointed to be Clerks.

 

5.   Service of Charges

 

(1) Following the formulation of the charge or charges by counsel appointed by the BSB Representative, the BSB Representative shall cause a copy thereof to be served on the defendant, together with a copy of these Regulations and details of any Directions sought not later than 10 weeks (or 5 weeks if the Professional Conduct has directed that the prosecution of the charges be expedited) after the date on which the complaint was referred to a Disciplinary Tribunal by the Professional Conduct .

 

(2) The BSB Representative shall at the same time cause copies of the charge or charges to be supplied to the President.

 

6.   Representation of complainant's interests

 

(1)  The BSB Representative shall keep the complainant (if any) informed of the progress of the complaint.

 

 

7.   Documents to be served

 

(1) The defendant shall, as soon as practicable,  be supplied with:

 

(a) a copy of the evidence of each witness intended to be called in support of the charge or charges

 

(b) a list of the documents intended to be relied on by the BSB Representative.

 

(2) If the documents referred to in paragraph (1) of this Regulation are not supplied to the defendant within 28 days of the defendant being served with charges in accordance with Regulation 5(1) above, then the BSB Representative shall provide to the defendant within that period:

 

(a) details of the evidence that is still being sought and

 

(b) a statement of when it is believed that it will be practicable to supply that evidence to the defendant.

 

(3) Nothing in this Regulation shall preclude the reception by a Disciplinary Tribunal of the evidence of a witness that has not been served on the defendant (within the time specified aforesaid, or at all), or of a document not included in the list of documents, provided the Tribunal is of opinion that the defendant is not materially prejudiced thereby, or on such terms as are necessary to ensure that no such prejudice occurs.

 

8.  Convening Orders

 

(1) After receipt of the copy charge or charges supplied pursuant to Regulation 5, the President shall issue an Order ("the Convening Order") specifying

 

(a) the name, Inn, date of call and (if appropriate) status as a pupil supervisor or date of taking silk of the defendant;

 

(b) the date of the sitting of the Disciplinary Tribunal at which it is proposed the charge or charges should be heard; and

 

(c) the names and status (that is, as Chairman, as lay member, or as barrister) of those persons who it is proposed should constitute the Disciplinary Tribunal to hear his case; and

 

(d) the name of the Clerk.

 

(2) The President shall arrange for the service of the Convening Order on the defendant, such service to take place not less than 14 days before the substantive hearing, and for copies thereof to be supplied to the nominated members of the Disciplinary Tribunal and the Clerk. In the Order the defendant's attention will be drawn to:

 

(a) his right to represent himself or be represented by counsel, with or without instructing a solicitor, as he shall think fit; and

 

(b) his right to inspect and be given copies of documents referred to in the list served pursuant to Regulation 7 above; and

 

(c) his right (without prejudice to his right to appear and take part in the proceedings) to deliver a written answer to the charge or charges if he thinks fit.

 

(3) The defendant shall have the right upon receipt of the Convening Order to give notice to the President objecting to any one or more of the proposed members of the Disciplinary Tribunal. Such notice shall be given as soon as reasonably practicable and shall specify the ground of objection.

 

(4) Upon receipt of such objection, the President shall, if satisfied that it is justified (but subject to Paragraph (5) of this Regulation) exercise the power conferred on him by Regulation 2(7) to nominate a substitute member or members of the Tribunal, and notify the defendant accordingly. Upon receipt of such notification, the defendant shall have in relation to such substitute member or members the like right of objection as is conferred by Paragraph (3) of this Regulation.

 

(5) No objection to any member of the Tribunal shall be valid on the ground that he has or may have had knowledge of a previous charge of professional misconduct or breach of proper professional standards or a charge consisting of a legal aid complaint against the defendant or any finding on any such charge, or of any sentence imposed on the defendant in connection therewith.

 

(6) The Convening Order shall contain words drawing the attention of the defendant to the rights conferred by Paragraphs (2) to (5) of this Regulation.

 

9.   Directions etc

 

(1) The President shall designate a Judge or Judges ("the Directions Judge(s)") to exercise the powers and functions specified in this Regulation.

 

(2)  The defendant shall, within 28 days of service of the Directions sought by the BSB Representative (as required by Regulation 5(1) above) agree such Directions in writing, or propose amendments to such Directions.

 

(3) If the BSB Representative and the defendant are thereafter able to reach agreement on such Directions, the BSB Representative shall submit the agreed Directions to the Directions Judge for approval.

 

(4) If the BSB Representative and the defendant are within 28 days of the defendant proposing amendments to the Directions (as required by paragraph (2) above) unable to reach agreement as to the Directions to be made, then the BSB Representative shall indicate in writing to the defendant that no agreement can be reached. Thereafter:

 

(a)  The defendant shall, within 14 days of such indication being served, provide to the BSB Representative written submissions:

 

(i) explaining why the defendant's proposed directions are to be preferred to the directions proposed by the BSB Representative; and

 

(ii) if the defendant wishes to submit that an oral directions hearing is appropriate, explaining why the defendant considers that an oral hearing is appropriate and providing a time estimate for such hearing.

 

(b) The BSB Representative shall, within 14 days of receipt of the defendant's submissions (or, if no such submissions are received, within 14 days of the last date on which such submissions should have been provided) forward the defendant's written submissions, together with its own submissions in respect of the matters identified at sub-paragraph (a) above, to the Directions Judge.

 

(5) If one or both parties have requested an oral hearing, or of his own motion, the Directions Judge shall consider whether it is necessary to hold an oral hearing. His decision in this regard will be final, and no appeal will lie against such decision.

 

(6) If the Directions Judge considers that no oral hearing is necessary, then he shall make a directions order in accordance with this Regulation without an oral hearing, having regard to the Directions proposed by the parties and any written submissions.

 

(7) For the avoidance of doubt, in the event that the defendant fails to agree directions and fails to provide written submissions in support of alternative directions, the BSB Representative may forward its proposed directions to the Directions Judge who may approve such directions without an oral hearing, if the Directions Judge considers that no oral hearing is necessary.

 

(8) If the Directions Judge considers that an oral hearing is necessary, the Directions Judge shall (subject to Paragraph (15) of this Regulation) direct that an oral Directions Hearing is to be held for the purpose of giving directions and of taking such other steps as he considers suitable for the clarification of the issues before the tribunal and generally for the just and expeditious handling of the proceedings.

 

(9) If the Directions Judge directs that an oral Directions Hearing is to be held, the Directions Judge shall at the same time direct:

 

(a) within what period of time the oral Directions Hearing is to be held; and

 

(b) the estimated length of the oral Directions Hearing.

 

(10) The BSB Representative shall thereafter seek to agree with the defendant a date and time for the oral Directions Hearing in accordance with the Directions Judge's order. Where no agreement can be reached, either party may refer the matter to the President for a date to be fixed in accordance with paragraph 33(1) below.

 

(11)  The directions to be given and steps taken by the Directions Judge may concern, but shall not be limited to, the following matters:

 

(a) whether the substantive hearing (or any part of it) should not be held in public - in which case reasons shall be given for such direction being made;

 

(b) applications for separate hearings;

 

(c) applications to sever charges;

 

(d) applications to strike out charges;

 

(e) attendance of witnesses;

 

(f) a requirement that the parties provide each other with the names of all witnesses to be called at the hearing within a specified time limit;

 

(g) admission of documents;

 

(h) admission of facts, in accordance with the procedure set out at Paragraph (12) of this Regulation;

 

(i)  a statement that the defendant has been duly served (in accordance with Regulation 32 of these Regulations) with the documents required by Regulations 5, 7 and 8;

 

(j) the estimated duration of the substantive hearing;

 

(k) a requirement that the parties provide to the President dates to avoid for the substantive hearing;

 

(l) such other matters as he deems expedient for the efficient conduct of the hearing;

 

(m) consideration of any application under Regulation 14(3) or under Regulation 19(5)(h);

 

(n) a requirement that such action as appears to him to be necessary for a fair hearing of the matter be undertaken within such period as he may decide;

 

(o) where he is satisfied that the matter is ready for hearing by a Tribunal recommend that the President set a date for the substantive hearing in accordance with paragraph 33(1) below;

 

(p)  applications for costs.

 

 

(12) (a) The Directions Judge may, if he thinks fit, request the defendant or his representative to state (either forthwith or in writing within such time as may be specified) whether any and if so which of such of the facts relied on in support of the charges as may be specified is disputed, and/or the grounds on which such fact is disputed. 

 

(b) The Clerk shall cause a record to be made of the making of such a request as aforesaid, and of the defendant's response thereto, and the same shall be drawn to the attention of the Disciplinary Tribunal at the conclusion of the substantive hearing, if relevant, on the question of costs.

 

 

(13) The powers and functions specified in this Regulation may be exercised by a Judge nominated by the President other than the Directions Judge, including the Judge designated in the Convening Order as Chairman of the Tribunal appointed to hear and determine the charge or charges against the defendant.

 

(14) The Clerk shall take a note of the proceedings at any oral Directions Hearing and shall cause a record to be drawn up and served on the parties setting out the directions given or admissions made at the oral Directions Hearing, including, without prejudice to the generality of the directions given, a record of any directions which relate to any of the matters specifically set out under Paragraph (11) of this Regulation.

 

(15)  Save in respect of an order made pursuant to paragraph (5) of this Regulation, a defendant aggrieved by a direction given or other step taken pursuant to this Regulation may give notice to the Clerk of his intention to apply for a review of such direction or step.

 

(a) Such  notice must be given within 14 days after the service on him of the record of any directions;

 

(b) Such review will be conducted by a panel appointed by the President consisting of:

 

(i) a person qualified to sit as Chairman of a five-person panel in accordance with Regulation 2(2)(a) above; and

 

(ii)  a lay member.

 

(c)  The review panel shall, on such application being made, give such directions or take such other steps as it sees fit.

 

(d)  The decision of the review panel shall not be subject to any review nor to any appeal.

 

(16) For the avoidance of doubt the Directions Judge, or the Chairman of the Disciplinary Tribunal designated in the Convening Order (or failing the Directions Judge or the Chairman, any other Judge nominated by the President) may

 

(a) upon the application of either party at any time extend or abridge any time limit governing the disciplinary procedures on such terms as he thinks just;

 

(b) upon the application of either party, or of his own motion, hold preliminary hearings for the purpose of giving any further directions or taking any other steps which he considers necessary for the proper conduct of the proceedings;

 

(c) adjourn any preliminary hearing from time to time and for such periods of time as he considers appropriate and set such time limits as he may decide for action to be taken during such adjournments; or

 

(d)  consider applications for adjournment of the substantive hearing prior to that Hearing and grant such adjournments as he considers appropriate.

 

10.  Provision of documents

 

(1) There shall be provided to each member of the Disciplinary Tribunal prior to the commencement of the substantive hearing copies of the following documents :

 

(a) the Order of the President constituting the Tribunal;

 

(b) the Charges and any particulars thereof;

 

(c) any documents proposed to be relied on by the BSB Representative or by the defendant, unless a direction has been made that copies of such documents be withheld;

 

(d) any written answer to the charges submitted by or on behalf of the defendant;

 

(e) such other documents as have been agreed or directed to be laid before the Tribunal prior to the start of the hearing; and

 

(f) the record of directions given which has been drawn up and served on the parties pursuant to Regulation 9(14).

 

11.  Procedure at the hearing

 

(1) The Tribunal shall apply the criminal standard of proof when adjudicating upon charges of professional misconduct.

 

(2)  The proceedings of a Disciplinary Tribunal shall be governed by the rules of natural justice, subject to which the tribunal may

 

(a) (subject to paragraph (3) below) admit any evidence, whether oral or written, whether direct or hearsay, and whether or not the same would be admissible in a court of law;

 

(b) give such directions with regard to the conduct of and procedure at the hearing, and with regard to the admission of evidence thereat, as it considers appropriate for securing that the defendant has a proper opportunity of answering the charge or otherwise as shall be just;

 

(c) exclude any hearsay evidence if it is not satisfied that reasonable steps have been taken to obtain direct evidence of the facts sought to be proved by the hearsay evidence.

 

(3) Reference may be made (if applicable) by any party to the fact that the Determination by Consent procedure was used prior to the complaint being referred as a charge before a Disciplinary Tribunal. However, no reference may be made to the substance of the procedure (including, without limitation, any reference to the contents of any report produced in the course of such procedure, or to the circumstances in which the Determination by Consent procedure terminated), unless and until the defendant makes reference to the substance of the procedure in the course of presenting his case.

 

12.   Hearing in private

 

The hearing before a Disciplinary Tribunal shall be in public unless it has been directed that it shall not be held in public, and such direction has not been over-ruled by the Tribunal.

 

13.   Decision of a court or tribunal

 

(1) In proceedings before a Disciplinary Tribunal which involve the decision of a court or tribunal, the following rules of evidence shall apply provided that it is proved in each case that the decision relates to the defendant:

 

(a) The fact that the defendant has been convicted of a criminal offence may be proved by producing a copy of the certificate of conviction relating to the offence; proof of a conviction in this matter shall constitute prima facie evidence that the defendant was guilty of the offence the subject thereof.

 

(b) The finding and sentence of any tribunal in or outside England and Wales exercising a professional disciplinary jurisdiction may be proved by producing an official copy of the finding and sentence.

 

(c) The judgment of any civil court may be proved by producing an official copy of the judgment.

 

(2) In any case set out in paragraph (1) of this Regulation, the findings of fact by the court or tribunal upon which the conviction, finding, sentence or judgment is based shall be admissible as prima facie proof of those facts.

 

14.    Absence of Defendant

 

(1) If a Disciplinary Tribunal is satisfied that the relevant procedure has been complied with and the defendant has been duly served (in accordance with Regulation 32 of these Regulations) with the documents required by Regulations 5, 7 and 8 and the defendant has not attended at the time and place appointed for the hearing, the tribunal may nevertheless proceed to hear and determine the charge or charges if it considers it just to do so, subject to compliance with Regulation 23(1) in the event of any charge being found proved.

 

(2)  If a Disciplinary Tribunal is satisfied that it has not been practicable to comply with the relevant procedure, the Tribunal may hear and determine the charge or charges in the absence of the  defendant if it considers it just to do so, subject to compliance with Regulation 23(2) in the event of any charge being found proved.

 

(3)   If the procedure under paragraph (2) of this Regulation has been followed, the defendant has the right to apply to the Directions Judge for an order that there should be a new hearing before a fresh Disciplinary Tribunal.

 

15.  Recording of proceedings

 

The Clerk shall arrange for a record of the proceedings before a Disciplinary Tribunal to be made by the employment of a shorthand writer or the use of a recording machine.

 

16.  Amendment of charges

 

A Disciplinary Tribunal may at any time before or during the hearing direct that the charge(s) shall be amended provided always:

 

(1) that the Tribunal is satisfied that the defendant will not by reason of such an amendment suffer any substantial prejudice in the conduct of his defence; and

 

(2) that the Tribunal may, if so requested by the defendant, adjourn for such time as is reasonably necessary to enable him to meet the charge or charges as so amended; and

 

(3) that the Tribunal may make such order as to the costs of or occasioned by the amendment, or of any consequential adjournment of the proceedings, as it considers appropriate.

 

17.   Adjournment

 

(1) Subject to the provisions of the following paragraph, the Disciplinary Tribunal shall sit from day to day until it has arrived at a finding and if any charge has been found proved until sentence is pronounced.

 

(2) Notwithstanding the provisions of paragraph (1) of this Regulation, a Disciplinary Tribunal may, if the Tribunal decides an adjournment is necessary for any reason, adjourn the hearing for such period as it may decide. 

 

18.   The finding

 

At the conclusion of the hearing, the finding of the Disciplinary Tribunal on each charge, together with its reasons, shall be set down in writing and signed by the Chairman and all members of the Tribunal. If the members of the Tribunal are not unanimous as to the finding on any charge, the finding to be recorded on that charge shall be that of the majority. If the members of the Tribunal are equally divided as to the finding on any charge, then, the burden of proof being on the BSB, the finding to be recorded on that charge shall be that which is the most favourable to the defendant. The Chairman of the Tribunal shall then announce the Tribunal's finding on the charge or charges, and state whether each such finding was unanimous or by a majority.

 

19.  The sentence

 

(1) If the Disciplinary Tribunal finds the charge or any of the charges proved, evidence may be given of any previous finding of professional misconduct or of breach of proper professional standardsor any finding on a charge consisting of a legal aid complaint against the defendant.  After hearing any representations by or on behalf of the defendant the Tribunal shall set down in writing its decision as to the sentence. If the members of the tribunal are not unanimous as to the sentence, the sentence to be recorded shall be that decided by the majority. If the members of the Tribunal are equally divided as to the sentence, the sentence to be recorded shall be that which is the most favourable to the defendant. The chairman of the Tribunal shall then announce the Tribunal's decision as to sentence and state whether the decision was unanimous or by a majority.

 

(2) Subject to paragraph (3) below, and subject to Regulation 35 below, a defendant against whom a charge of professional misconduct has been found proved may be sentenced by the Disciplinary Tribunal to be:

 

(a) disbarred (or in the case of a registered European lawyer, removed from the register of European lawyers);

 

(b) suspended (or in the case of a registered European lawyer suspended from the register of European lawyers) for a prescribed period (either unconditionally or subject to conditions);

 

(c) prohibited, either indefinitely or for a prescribed period and either unconditionally or subject to conditions, from accepting or carrying out any public access instructions;

 

(d) ordered to pay a fine of up to £15,000 to the BSB;

 

 

(e) ordered to complete continuing professional development of such nature and duration as the Tribunal shall direct and to provide satisfactory proof of compliance with this order to the Professional Conduct Committee;

 

(f) ordered to take and pass a professional conduct and ethics test by a stated date, failing which the defendant shall be suspended from practice until such test has been passed, provided thatno such sentence shall be imposed unless and until the BSB has prescribed procedures by which such tests are to be conducted;

 

 

(g) reprimanded by the Treasurer of his Inn;

 

(h) reprimanded by the Tribunal;

 

(i) given advice by the Tribunal as to his future conduct;

 

(j) ordered by the Tribunal to attend on a nominated person to be reprimanded;

 

(k) ordered by the Tribunal to attend on a nominated person to be given advice as to his future conduct.

 

(3)  In any case where a charge of professional misconduct  has been found proved, the Tribunal may decide that no further action should be taken against the  defendant.

 

(4) A three-person panel shall not impose a sentence of disbarment, nor shall it impose a sentence of suspension for a prescribed period in excess of three months' duration.(For the avoidance of doubt, this paragraph does not prevent a three-person panel making an order in accordance with paragraph (2)(f) above, nor in accordance with Regulations 20(3)(b) or 20(3)(c) below.)

 

(5) In the event that a three-person panel considers that a case before it merits (in conjunction with any deferred sentence activated in accordance with Regulation 22 below) a sentence of disbarment or of suspension for a prescribed period in excess of three months' duration:

 

(a) The three-person panel shall refer the case to a five-person panel for sentencing.

 

(b) The three-person panel shall, for the assistance of the five-person panel, prepare a statement of facts as found, which will not be open to challenge before the five-person panel.

 

(c) The three-person panel shall direct within what period of time the sentencing hearing before the five-person panel is to be held.

 

(d) The five-person panel shall be composed in accordance with Regulation 2(2). The defendant shall be informed as soon as practicable of the names and status (that is, as Chairman, as lay member, or as barrister) of those persons who it is proposed should constitute the five person panel. The defendant shall have the right upon receipt of such information to give notice to the President objecting to any one or more of the proposed members of the panel. Such notice shall be given as soon as reasonably practicable and shall specify the ground of objection.

 

(e) The President shall fix the date for the sentencing hearing in accordance with paragraph 33(1) below.

 

(f)  If the five-person panel is satisfied that the requirements of sub-paragraph (e) above have been complied with and the defendant has not attended at the time and place appointed for the sentencing hearing, the five-person panel may nonetheless proceed to sentence the defendant, subject to compliance with Regulation 23(3).

 

(g) If the five-person panel is satisfied that it has not been practicable to comply with the requirements of sub-paragraphs (e) above and the defendant has not attended at the time and place appointed for the sentencing hearing, the five-person panel may nonetheless proceed to sentence the defendant, subject to compliance with Regulation 23(4).

 

(h) If the procedure under sub-paragraph (g) has been followed, the defendant has the right to apply to the Directions Judge for an order that there should be a new sentencing hearing before a fresh five-person panel.

 

(6)  Sections 41 and 42 of the Administration of Justice Act 1985 (as substituted by Section 33 of the Legal Aid Act 1988 and amended by Schedule 4 to the Access to Justice Act 1999) confer certain powers (relating to the reduction or cancellation of  fees otherwise payable by the Legal Services Commission in connection with services provided as part of the Community Legal Service or Criminal Defence Service and to exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service) on a Disciplinary Tribunal in the cases to which those Sections apply. Accordingly:

 

(a) Any Disciplinary Tribunal which hears a charge consisting of a legal aid complaint relating to the conduct of a defendant may if it thinks fit (and whether or not it sentences the defendant in accordance with paragraphs (2) to (5) of this Regulation in respect of any conduct arising out of the same legal aid complaint) order that any such fees as are referred to in Section 41(2) of the Act of 1985 shall be reduced or cancelled.

 

(b) Where a Disciplinary Tribunal hears a charge of professional misconduct against a defendant it may (in addition to or instead of sentencing that defendant in accordance with paragraphs (2) to  (5) of this Regulation) order that he shall be excluded from  providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service either temporarily or for a specified period if it determines that there is good reason for the exclusion arising out of (i) his conduct in connection with any such services as are mentioned in Section 40(1) of the Act of 1985; or (ii) his professional conduct generally.

 

(7) In a case where a defendant is charged with professional misconduct comprising an infringement of any of the provisions referred to in paragraph 901.1 of the Code, and the panel finds that there was an infringement of that provision but that the charge of professional misconduct is not proved, thenthe panel may direct that the BSB send a written warning to the defendant or that a financial penalty be imposed on him for the infringement of the Code or both.

 

(8) Whether or not a Disciplinary Tribunal shall have found any charge proved, if the Disciplinary Tribunal considers that the circumstances of the complaint are relevant to the defendant in his capacity as a pupil supervisor, it may notify the defendant's Inn of its concerns in such manner as it sees fit.

 

(9) If a barrister is a member of more than one Inn, each Inn of which he is a member shall be mentioned in the sentence.

 

(10) For the purpose of this Regulation:

 

(a) A sentence of suspension for a barrister shall mean that the defendant is suspended from practice as a barrister and from enjoyment of all rights and privileges as a member of the Inn(s) of which he is a member and is, for so long as he remains suspended, prohibited from holding himself out as being a barrister without disclosing the suspension.

 

(b) A sentence of suspension for a registered European lawyer shall mean that the defendant is suspended from the register of European lawyers maintained by the BSB and is, for so long as he remains suspended, prohibited from holding himself out as registered with the BSB without disclosing the suspension.

 

(c)           A sentence requiring completion of continuing professional development shall be in addition to the mandatory requirements set out in the Continuing Professional Development Regulations at Annex C to the Code of Conduct.

 

20.   Sentence of suspension from practice as a Barrister

 

(1) Any sentence of suspension from practice may apply to the whole of a defendant's practice or to such part only as the Disciplinary Tribunal may determine.

 

(2) The conditions to which a sentence of suspension from practice may be made subject include a requirement that the defendant shall undergo such further pupillage or training or attain such standard of competence as the Tribunal may determine.

 

(3) The prescribed period for which a sentence of suspension from practice is expressed to run may be

 

(a)  for  a fixed period; or

 

(b) for a period until the defendant has complied with any practising requirements under paragraph 202(a) to (d) of this Code or paragraph 5(1) or (2) of the Registered European Lawyers Rules, as the case may be, of which the defendant has been found by that Disciplinary Tribunal to be in breach; or

 

(c)  until the defendant has complied with the order of the tribunal.

 

21.  Power to order that a sentence has deferred effect

 

(1) Where a sentence imposed by a Disciplinary Tribunal includes a fine and/or a suspension from practice, those elements of the sentence may be directed by the Disciplinary Tribunal to have deferred effect.

 

(2) A sentence may have deferred effect for a minimum of six months or a maximum of two years (the "period of deferral").

 

22.   Power to activate a deferred sentence

 

(1) A deferred sentence shall be activated where the defendant is subsequently found (whether during the period of suspension or afterwards) to have committed a Relevant Breach during the period of deferral. For the purpose of this Regulation, a Relevant Breach is a breach of the Code of Conduct amounting to professional misconduct.

 

(2) Where a Disciplinary Tribunal finds that there has been a Relevant Breach during the period of deferral, it shall (at the same time as imposing sentence for the Relevant Breach) activate the sentence which had been deferred, save in exceptional circumstances.

 

(3) For the avoidance of doubt, a Disciplinary Tribunal may (where the conditions for activation of a deferred sentence are satisfied) activate a sentence which has been deferred when imposed by the Professional Conduct Committee pursuant to the Determination by Consent procedure.

 

(4) Where a deferred sentence is activated pursuant to this Regulation, the sentence shall then be pronounced, and any action as may be required to carry the sentence into effect shall be taken, in accordance with Regulation 27 below.

 

23.  Wording of the sentence when defendant not present

 

If the defendant has not been present throughout the proceedings, the sentence shall include one or more of the following statements:

 

(1) If the relevant procedure under Regulation 14(1) has been complied with, that the finding and sentence were made in the absence of the defendant in accordance with Regulation 14(1).

 

(2) If the procedure under Regulation 14(2) has been complied with, that the finding and the sentence were made in the absence of the defendant and that he has the right to apply to the Directions Judge for an order that there should be a new hearing before a fresh Disciplinary Tribunal.

 

(3) If the relevant procedure under Regulation 19(5)(f) has been complied with, that the sentence was made in the absence of the defendant in accordance with Regulation 14(1).

 

(4) If the procedure under Regulation 19(5)(g) has been complied with, that the sentence was made in the absence of the defendant and that he has the right to apply to the Directions Judge for an order that there should be a new hearing before a fresh Disciplinary Tribunal.

 

24.  Report of Finding and Sentence

 

As soon as practicable after the conclusion of the proceedings of a Disciplinary Tribunal, the chairman of the Tribunal shall prepare a report in writing of the finding on the charges of professional misconduct and the reasons for that finding and, where applicable, the sentence. At the discretion of the chairman of the Tribunal, the report may also refer to matters which, in the light of the evidence given to the Tribunal, appear to require investigation or comment. He shall send copies of the report to the following:

 

(1) In all cases:

 

(a) The Lord Chancellor

 

(b) The Lord Chief Justice

 

(c) The Attorney General

 

(d) The President

 

(e) The Chairman of the Bar Council

 

(f) The Director of the BSB.

 

(g) The defendant.

 

(h) The complainant (if any).

 

(i) The Treasurer of the defendant's Inn of Call

 

(j) The Treasurer of any other Inn of which the defendant is a member.

 

(2) In cases where one or more charges of professional misconduct have been found proved and any such charge constitutes or arises out of a legal aid complaint, and/or the sentence includes an order under Regulation 19(6), the  Legal Services Commission.

 

25.  Appeal to the Visitors

 

(1)  In cases where one or more charges of professional misconduct have been proved, an appeal may be lodged with the Visitors in accordance with the Hearings Before the Visitors Rules 2005:

 

(a) against conviction by the defendant; and/or

 

(b) against sentence, by the defendant or (with the Consent of the Chairman of the BSB or the Chairman of the Professional  ConductCommittee) by the BSB; and/or

 

(c) in any case where any charge of professional misconduct has been dismissed (with the consent of the Chairman of the BSB or the Chairman of the Professional Conduct Committee) by the BSB.

 

(2) In cases where no professional misconduct has been proved, but the defendant has been found to have infringed one or more provisions of the Code referred to in paragraph 901.1 of the code, an appeal lies against that finding at the instance of the defendant in the manner prescribed in Annex J to the Code of Conduct (the Complaints Rules).

 

(3) In any case where the BSB intends to appeal under sub-paragraph (1)(c) above, the consent of the Chairman of the BSB or the Chairman of the Professional Conduct Committee shall be obtained within the period of 28 days beginning with the date on which the order of the Disciplinary Tribunal was made (or, if later, within the period of 28 days beginning with the date on which sentence was imposed pursuant to such order).  In the event that such consent is not obtained within that period no appeal under sub-paragraph (1)(c) shall be permitted without permission of the Visitors.

 

(4) Where a defendant lodges an appeal against a sentence of disbarment, he may at the same time lodge with the Visitors an appeal against any requirement imposed pursuant to Regulation 28.

 

(5) For the avoidance of doubt, a complainant (other than, where applicable, the BSB) shall have no rights of appeal.

 

26.   Appeal: sum payable

 

Where an appeal is lodged with the Visitors by the Defendant, the Notice of Appeal must be accompanied by the sum of £250 payable to the BSB to defray expenses, such sum to be refunded in the discretion of the Visitors in the event of an appeal which is successful wholly or in part.

 

27.   Action by the Defendant's Inn

 

(1) On receipt of the report prepared in accordance with Regulation 24, the Treasurer of the defendant's Inn of Call shall not less than 21 days after the conclusion of the Tribunal's proceedings (or, where the defendant has given notice appeal to the Visitors against the finding and/or sentence, once the time for appeal has expired and any appeal arising has been disposed of) pronounce the sentence decided on by the Tribunal, and take such further action as may be required to carry the sentence into effect. The Treasurer shall inform the persons specified in Regulation 24(1) of the date on which the sentence is to take effect.

 

 

(2) Similar action shall be taken by the Treasurer of any other Inn of which the defendant is a member in conjunction with the Treasurer of the defendant's Inn of Call.

 

(3) In any case in which the defendant has given notice of appeal to the Visitors against the finding and/or sentence of the Tribunal on the charges of professional misconduct, the action set out in paragraphs (1) and (2) of this Regulation shall be deferred until the appeal has been heard by the Visitors or otherwise disposed of without a hearing.

 

(4) Where, pursuant to Regulation 30(3)(a)(i) or Regulation 30(3)(b) below, a Tribunal has required the BSB to  suspend the defendant's practising certificate or not to issue a practising certificate to the defendant pending appeal ("the Interim Measure"), the Treasurer shall direct that any period of suspension to which the defendant has been sentenced shall be deemed to have taken effect on the date on which the Interim Measure came into effect, or the date on which the defendant would otherwise have been eligible to be issued with a practising certificate, whichever is the later.

 

28.   Action by the Bar Standards Board

 

(1) In the case of a registered European lawyer, on receipt of the report prepared in accordance with Regulation 24, the BSB shall not less than 21 days after the conclusion of the Tribunal's proceedings pronounce the sentence decided on by the Tribunal and take such further action as may be required to carry the sentence into effect.  The BSB shall inform the persons specified in Regulation 24(1) of the date on which the sentence is to take effect.

 

(2) In any case in which a registered European lawyer has given notice of appeal to the Visitors against the finding and/or sentence of the Tribunal on the charges of professional misconduct, the actions set out in paragraph (1) of this Regulation shall be deferred until the appeal has been heard by the Visitors or otherwise disposed of without a hearing.

 

(3) The BSB shall take all such steps as may be necessary or expedient in order to give effect to any requirement made by the Tribunal pursuant to Regulation 30 below.

 

29.  Publication of finding and sentence

 

(1) The following procedures are to be observed in regard to publication of the finding and sentence of a Disciplinary Tribunal:

 

(a) When the Tribunal has found one or more charges of professional misconduct have been proved the President shall publish the charges found proved and the sentence as soon as he has been informed by the Treasurer(s) of the defendant's Inn(s) of the date from which the sentence is to take effect.

 

 

(b) When the Tribunal has found that any charge of professional misconduct has not been proved the President shall not publish that charge and the finding unless the defendant so requests.

 

(2)  When publishing any finding, sentence or decision in accordance with paragraph (1) of this Regulation, the President shall communicate the same in writing to:

 

(a) the Lord Chancellor;

 

(b) the Lord Chief Justice;

 

(c) the Attorney General;

 

(d) the Director of Public Prosecutions;

 

(e) the Treasurer of each Inn for screening in the Hall, Benchers' Room and Treasurer's Office of the Inn;

 

(f) the Chairman of the Bar Council;

 

(g) the Leaders of the six circuits;

 

(h) the defendant;

 

(i) the complainant (if any);

 

(j)  such one or more press agencies or other publications as the President may decide;

 

(k) in the case of a registered European lawyer, his home professional body.

 

(3) The BSB shall publish the finding and sentence of the Tribunal in such manner and in such time as it sees fit unless:

 

(a) the hearing was held in private; and

 

(b) the Chairman of the Tribunal directs that publication shall be delayed until the President has published the finding under paragraph (1) of this Regulation.

 

30.  Suspension pending appeal

 

(1) This regulation applies in relation to any defendant who has been sentenced to be disbarred or to be suspended or prohibited from accepting or carrying out any public access instructions for a period of more than one year.

 

(2) Where this regulation applies the Tribunal shall seek representations from the defendant and the BSB Representative as to whether it would be inappropriate to take action under paragraphs (3) or (4) below;

(3) Having heard any representations under paragraph (2) above, the Tribunal shall:

 

(a) unless in the particular circumstances of the case it appears to the Tribunal to be inappropriate to do so, either:

 

(i) require the BSB to suspend immediately the practising certificate of the defendant; 

 

(ii) determine that its sentence prohibiting the defendant from accepting or carrying out any public access instructions shall take effect immediately; or

 

(b) where the defendant has been sentenced to be disbarred or to be suspended and where that defendant does not currently hold a practising certificate, require the BSB not to issue any practising certificate to him.

 

(4)  If pursuant to paragraph (3)(a) above the Tribunal concludes that it would be inappropriate to require immediate suspension it may nonetheless require the BSB to suspend the practising certificate of the defendant from such date as the Tribunal may specify.

 

(5) Where this regulation applies but the defendant is permitted to continue to practise for any period the Tribunal may require the BSB to impose such terms in respect of the defendant's practice as the Tribunal deems necessary for the protection of the public.

 

(6) If a defendant in relation to whom a requirement has been made pursuant to paragraphs (3) to (5) above considers that, due to a change in the circumstances, it would be appropriate for that requirement to be varied, he may apply to the President in writing for a variation to be made.

 

(7) On receiving an application made pursuant to paragraph (6) above the President shall refer it to the Chairman and one of the lay members of the Tribunal which originally imposed the requirement.

 

(8) Any application made pursuant to paragraph (6) above shall be sent by the applicant, on the day that it is made, to the Professional Conduct Committee and the Professional Conduct Committee may make such representations as they think fit on that application to those to whom the application has been referred by the President.

 

(9) The persons to whom an application made pursuant to paragraph (6) above is referred may vary or confirm the requirement in relation to which the application has been made.

 

(10) References in this Regulation to the BSB shall be treated as referring to such body as may from time to time have the power to issue or suspend practising certificates or to impose terms in respect of a barrister's practice.

 

31.  Costs

 

(1) A Disciplinary Tribunal shall have power to make such Orders for costs, whether against or in favour of a defendant, as it shall think fit.

 

(2) Upon making such an Order a Disciplinary Tribunal shall either itself determine the amount of such costs or appoint a suitably qualified person to do so on its behalf.

 

(3) Any costs ordered to be paid by or to a defendant shall be paid to or by the BSB.

 

(4)  Subject as aforesaid, all costs and expenses incurred by a Disciplinary Tribunal or by the Professional Conduct Committee in connection with or preparatory to the hearing before the Tribunal shall be borne by the BSB.

 

32.   Service of documents

 

(1) Any documents required to be served on a defendant arising out of or in connection with disciplinary proceedings shall be deemed to have been validly served:

 

(a) If sent by registered post, or recorded delivery post, or receipted hand delivery to:

 

(i) the address notified by such defendant pursuant to Paragraph 202(d) of the Code of Conduct (or any provisions amending or replacing the same); or

 

(ii) an address to which the defendant may request in writing that such documents be sent; or

 

(iii) in the absence of any such request, to his last known address;

 

and such service shall be deemed to have been made on the fifth working day after the date of posting or on the next working day after receipted hand delivery;

 

(b) If served by e-mail, where:

 

(i) the defendant's e-mail address is known to the BSB; and

 

(ii) the defendant has requested or agreed to service by e-mail, or it is not possible to serve by other means;

 

and such service shall be deemed to have been made on the second working day after the date of sending the e-mail;

 

(c) If actually served;

 

(d) If served in any way which may be directed by the Directions Judge or the Chairman of the Disciplinary Tribunal.

 

(2) For the purpose of this regulation "receipted hand delivery" means by a delivery by hand which is acknowledged by a receipt signed by the defendant or his clerk.

 

33.   Miscellaneous provisions

 

(1)  Where under these Regulations any hearing is to be fixed by the President:

 

(a) The President shall have regard to the availability of the parties, save that the President may disregard the availability of any party where that party has failed to provide any, or any reasonable dates of availability.

 

(b) Both parties shall be informed of the date fixed for the hearing as soon as reasonably practicable after the date has been fixed.

 

(2) Any duty or function or step which, pursuant to the provisions of these regulations, is to be discharged or carried out by the President may, if he is unable to act due to absence or any other reason, be discharged or carried out by any other member of the Council of the Inns of Court, the Treasurer of any Inn or by any other person nominated in writing by the President for any specific purpose.

 

(3) When the Treasurer of an Inn is a Royal Bencher, references in these Regulations to such Treasurer shall be read as references to his deputy.

 

34.    Exclusion from providing representation funded by the Legal Services Commission - Application for termination

 

(1) A defendant who has been excluded from legal aid work under Section 42 of the Act of 1985 may apply for an order terminating his exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service in accordance with this Regulation.

 

(2) Any such application shall be in writing and shall be addressed to the President.

 

(3) On considering any such application the President may dismiss the application or may determine that the defendant's exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service be terminated forthwith or on a specified future date.

 

(4) The President shall give notification of his decision in writing to the same persons as received copies of the report of the Disciplinary Tribunal which ordered that the defendant be excluded from providing such representation legal aid work.

 

(5) Upon the receipt of any such report the Treasurer of the applicant's Inn of Call and of any other Inn of which he is a member shall take action equivalent to that which it took in respect of the report of the Disciplinary Tribunal which sentenced the defendant to be excluded from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service.

 

(6) The procedures to be observed in regard to the publication of the decision of the President on any such application as is referred to in this Regulation shall be those which were applicable to the publication of the finding and sentence whereby the applicant was excluded from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service.

 

(7) The President shall have power to make such order for costs as he thinks fit and Regulation 31 shall apply with all necessary modifications.

 

35.   Citation, commencement, revocations and transitional provisions

 

(1) These Regulations may be cited as "The Disciplinary Tribunals Regulations 2009" and shall come into operation on 31st March 2009 save that

 

(a) no fine may be ordered in excess of £5,000 in respect of conduct before 31st March 2009.

 

(2) Subject to Paragraph (3) below, the Disciplinary Tribunals Regulations of the Council of the Inns of Court and any other rules or regulations relating to Disciplinary Tribunals made prior to the commencement of these Regulations shall cease to have effect on 30th March 2009;

 

(3)  These Regulations shall apply to all cases, including any case in which a defendant was served with the charge or charges before 31st March 2009 and any step taken in any such case pursuant to the Regulations then applying shall be regarded, unless otherwise decided, as having been taken pursuant to the equivalent provisions of these Regulations.

 

(4) These Regulations shall apply to all cases where the Professional Conduct Committee decided before 31st March 2009 that a complaint should form the subject matter of a charge before a Disciplinary Tribunal as if the Professional Conduct Committee had at that time directed that the charge should be heard by a five-person panel.