Robert Kearney v The Bar Standards Board [2025] EWHC 2048 (Admin)

[2025] EWHC 2048 (Admin)Case No AC-2025-MAN-000091
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue SITTING IN MANCHESTER
ON APPEAL FROM THE BAR TRIBUNAL AND
ADJUDICATION SERVICE
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue Greater ManchesterDate 31/07/2025
M60 9DJ
Before
MRS JUSTICE HILL
Between
ROBERT KEARNEYAppellantTHE BAR STANDARDS BOARDRespondent
Mr Rossano Scamardella KC for AppellantMs Harini Iyengar for RespondentHearing Hearing date: 15 July 2025
Approved JudgmentThis judgment was handed down remotely at 3:30 pm on 31 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE HILL

Introduction

[1]This is an appeal under section 24 of the Crime and Courts Act 2013 against a decision of a Bar Tribunal and Adjudication Service (“BTAS”) disciplinary tribunal (“the Tribunal”) following a sanctions hearing on 16 December 2024. The Appellant had admitted a series of charges of misconduct of a sexual nature. By an oral judgment given at the end of the hearing and further written reasons dated 7 January 2025, sent to the Appellant on 11 February 2025, the Tribunal disbarred the Appellant from practice as a barrister.[2]The Bar Standards Board (“the BSB”) is the Respondent to the appeal, as the regulator which brought the disciplinary proceedings against the Appellant.[3]On 6 July 2025 an anonymity order was made such that the individuals who had complained of misconduct by the Appellant in the third and fourth set of disciplinary proceedings, a “mini-pupil” barrister and two pupil barristers, are to be known for the purposes of these proceedings as “Person A”, “Pupil A” and “Pupil B”. They had been granted the same anonymity in the BTAS proceedings. Accordingly, there must be no publication of any name, address, picture, or other information which may directly or indirectly lead to the identification of these individuals. I now make an identical order in relation to those who had complained about the Appellant in the first and second set of disciplinary proceedings, a male pupil and a female mini-pupil, referred to for the purposes of this appeal as “Pupil Y” and “Person X”.[4]The Appellant was represented on the appeal by Rossano Scamardella KC and the Respondent by Harini Iyengar. I was greatly assisted by the written and oral submissions of both counsel.

The factual background in overview

[5]The Appellant was called to the Bar in 1996. He practised in criminal law from a series of Chambers in Manchester. Due to his personal background and his struggles to secure a tenancy in Chambers, he was always very supportive of those looking to become barristers.[6]The Appellant has faced four sets of disciplinary proceedings for misconduct of a sexual nature: cases 2017/0431, 2019/0057, 2020/0928 and 2021/4962. This appeal relates to the sanctions imposed in cases 2020/0928 and 2021/4962. Both cases involved allegations that the Appellant had acted contrary to the Code of Conduct of the Bar of England and Wales (9th Edition), contained in Part 2 of the Bar Standards Board Handbook (Version 3.3) (“the Code”).[7]In case 2021/4962, the sanction was imposed for one charge that the Appellant had behaved in a way which was likely to diminish the trust and confidence which the public places in a barrister or in the profession, contrary to Core Duty 5 of the Code (Charge 2); and one that he had behaved in a way which could reasonably be seen by the public to undermine his integrity, contrary to Rule rC8 (Charge 3).[8]The Appellant had sexually harassed Person A, a mini-pupil he was supervising, during the course of a week’s mini-pupillage from 23-26 July 2018. The alleged harassment took place during the working day, including at court. It was alleged that the Appellant had made inappropriate remarks to and about Person A and made physical contact with her by touching the label inside the neck of her dress.[9]In case 2020/0928, the sanction related to two charges alleging that the Appellant had failed to act with integrity contrary to Core Duty 3 (Charges 1 and 2); two charges of having behaved in a way which was likely to diminish the trust and confidence which the public places in him or in the profession contrary to Core Duty 5 (Charges 3 and 4); and two charges of having behaved in a way which could reasonably be seen by the public to undermine his integrity contrary to Rule rC8 (Charges 5 and 6).[10]The Appellant had sexually harassed Pupil A and Pupil B, who belonged to a different Chambers from the Appellant. The alleged harassment took place in the evening at a Chambers “Silks’” party and at a subsequent event at the Mojo bar in Manchester, on 13 February 2020. It was alleged that the Appellant had made physical contact with Pupil A and Pupil B by way of inappropriately placing his hands on them during the Silks party and had made inappropriate remarks to them at the Chambers event and at the Mojo bar. Throughout the disciplinary investigation and before the Tribunal there was an issue between the parties about the probative value of CCTV footage which the Appellant had obtained from the Mojo bar.[11]The Appellant had admitted these charges at a hearing on 11 October 2022. On 9 November 2022, he provided two documents entitled “basis of plea” in relation to each set of charges. Once he had viewed the CCTV footage, he provided a supplementary basis of plea. As these were the descriptions of the documents used before the Tribunal I will continue to refer to them as such, notwithstanding the more recent obiter observations of McGowan J in Taylor v Bar Standards Board [2025] EWHC 1029 at [11] to the effect that the use of such language and terms of art from the criminal courts is “unhelpful and inappropriate” in disciplinary proceedings.[12]The sanctions hearing on 16 December 2024 took place before a differently constituted Tribunal. The Tribunal comprised a five-person panel.[13]The Tribunal considered an agreed main bundle, the CCTV footage from the Mojo bar, an additional bundle provided by the Appellant containing his basis of plea documents, numerous character references, commentary on the CCTV footage, a reflective statement from the Appellant dated August 2024 and transcripts of the judgments from the disciplinary proceedings in 2018 and 2021. The Tribunal had also been provided with an Opening Note on behalf of the BSB and with two detailed chronologies, one produced on behalf of the BSB and the other on behalf of the Appellant. The chronologies were not disputed. The Appellant had not provided a statement as to the circumstances of the misconduct in either of the cases they were considering.[14]The hearing proceeded by way of oral submissions only. The Tribunal confirmed that it was applying Version 6 of the BTAS “Sanctions Guidance” which came into effect on 1 January 2022, and which applies to all misconduct regardless of the date on which it occurred. The Appellant had conceded that this was the correct approach in Mr Scamardella KC’s September 2024 Mitigation Note.[15]The Tribunal’s unanimous decision was announced at the end of the hearing, with brief reasons given. Further written reasons were set out in the Tribunal’s comprehensive Report of Finding and Sanction dated 7 January 2025. References in square brackets in this judgment are to that report.

Previous disciplinary proceedings involving the Appellant

[16]Both parties had referred the Tribunal to the previous disciplinary proceedings involving the Appellant, for different reasons. The BSB had relied on them as a relevant aggravating factor. Mr Scamardella KC had argued on behalf of the Appellant that the BSB’s investigation and conduct of the 2020 case had been dilatory and unhelpful and that this had caused serious prejudice to the Appellant by depriving him of the opportunity to have that case dealt with in 2021 and for the sanctions to have been “rolled up”. He had urged the Tribunal to bear in mind the delay for which he criticised the BSB when deciding the appropriate sanction: [13]. It is therefore necessary to set out the allegations and outcome of the previous disciplinary proceedings involving the Appellant in a little detail, as the Tribunal did at [14]-[22].

The November 2018 disciplinary hearing concerning misconduct in October 2017 (Case 2017/0431)

[17]The first set of disciplinary proceedings involved a male pupil, known for the purposes of this appeal as Pupil Y.[18]On 10 October 2017, at a Bar Mess function, the Appellant “put his arm around a male pupil whom he had never previously met, engaged in unwanted and excessively physical contact with him, and made hostile and intimidating statements which included stating that he [the Appellant] had “butt fucked another Chambers dry” and asking the pupil if he “had ever taken a woman dry from behind”. Within a matter of days the misconduct was reported by the pupil to his own Head of Chambers who in turn reported it to the BSB: [14].[19]On 19 October 2017 the Appellant attended a meeting with the Heads of his of Chambers and that of the pupil and sent a letter of apology to latter.[20]On 4 January 2018, after he had been notified of the complaint against him by the BSB and seen the complaint, the Appellant sent a further letter of apology.[21]On 8 January 2018 the Appellant provided a response to the complaint to the BSB. He admitted the charges and apologised. The Appellant’s response document was summarised in, and appended to, the BSB’s chronology. In it, the Appellant indicated that he did not wholly agree with the facts alleged, but said the differences were minor and he would not require any person to give evidence. He accepted that his behaviour on the night in question had been “unpleasant and unwanted” and said that he was “embarrassed and ashamed” by it. He said that he had been drunk and “in hindsight [I] should have gone home rather than attend the function…I was clearly in no fit state to hold a conversation and my attempts at conversation and humour were crude, bumbling and unwanted”.[22]He confirmed that in response to the complaint he had met with his Head of Chambers and the Leader of the Circuit. He indicated that he was “taking the matter very seriously” and was “deeply upset and ashamed that he had caused anyone distress”. He had undertaken to absent himself from the Bar Mess for 12 months “to avoid any further embarrassment for those involved”. He said that he hoped that when the matter was concluded he would be able to apologise to the three individuals involved in the incident directly.[23]On 20 November 2018, the Appellant appeared before a three-person disciplinary Tribunal chaired by Alan Steinfeld KC. He admitted one charge of breach of Core Duty 5 in relation to the events of 10 October 2017. The Tribunal in this case summarised the facts of the case in the manner set out at [18] above, and continued:
“16. The complainant felt embarrassed, intimidated, and shocked by the behaviour which left him feeling violated, belittled, and disgusted and reluctant to attend further Bar Mess events. In mitigation it was said that the [Appellant]’s behaviour was an isolated incident for which he had apologised promptly and for which he had expressed genuine remorse and that there was no reason to think he would act in that way again. Having considered all the facts and the aggravating and mitigating factors including that this was “an isolated incident,” the Tribunal concluded that it was satisfied that the [Appellant] “was not going to repeat this sort of conduct again.”
[24]The Tribunal reprimanded the Appellant and ordered him to pay £1,000. In delivering the reprimand, the Chairman said he trusted that the Appellant had “learned the lesson that, if he is already inebriated, he should not attend professional occasions”: [17].

The March 2021 disciplinary hearing concerning misconduct in January 2015 (Case 2019/0057)

[25]The second set of disciplinary proceedings involved a female mini-pupil, referred to for the purposes of this appeal as Person X. It was alleged that the Appellant had behaved inappropriately towards Person X in January 2015. The allegations were not reported to the BSB until late in 2018 when Person X became aware of the report of the disciplinary hearing in case 2017/0431 in November of that year when the misconduct was said to have been “an isolated act”: [18].[26]On 23 April 2019 the Appellant responded to Person X’s complaint to the BSB. Again, the Appellant’s response document was summarised in, and appended to, the BSB’s chronology. In his response the Appellant indicated that he did not remember Person X. He highlighted the adverse professional and financial impacts on him that the publicity around the previous disciplinary proceedings had caused: for example, he had been banned from prosecuting for the Crown Prosecution Service for 6 months and removed permanently from the panel of counsel permitted to prosecute rape and serious sexual offences. He predicted he had lost £30,000 due to the professional damage suffered. He had also been temporarily banned from his volunteer role with the Scouting movement, which he had otherwise enjoyed doing with his two sons.[27]In December 2020 and March 2021 the Appellant appeared before a five-person Tribunal chaired by HHJ Andrew Goymer to decide three charges of professional misconduct relating to Person X. The Appellant denied all of the allegations. The Tribunal heard evidence from a number of witnesses including Person X and the Appellant and found all three charges proved to the criminal standard of proof: [18] and [19].[28]As the Tribunal in this case explained: “20. The findings of fact were that [the Appellant]: i. …[T]old Person X that he kept his nails short because you can’t finger a woman with long nails; ii. Asked Person X if she had ever had sex at her parents’ house and the details of it; iii. Told Person X that eating pineapple makes semen taste better; iv. Said to Person X she should wear skirts and heels instead of trousers and asked what her bra size was; v. Leant into Person X when the two were alone in a lift, smelt her neck and asked what perfume she was wearing; vi. Spoke about sex with his wife and was physically too close to Person X”.[29]The Tribunal imposed a 6 month suspension with a fine of £3,000. In April 2021, the Appellant appealed the sanction. In January 2022, the appeal was dismissed: [21]-[22].

The facts of the two cases before the Tribunal

(i) : Case 2020/0928

[30]Case 2020/0928 involved sexual misconduct towards Pupil A and Pupil B. The Tribunal set out the relevant facts as follows: “30. On 13 February 2020 RK attended a Silks’ congratulatory event at Chambers followed by a visit to Mojo Bar. Pupils A and B from another set of Chambers also attended. RK was already inebriated when he arrived.31. The misconduct to Pupil A consisted of commenting on her eyes and her figure and then asking her how many older men she had slept with, how many senior members of the bar she had slept with, telling her she needed to have sex with an older man with experience, staring at her and telling her that she was “beautiful” and “gorgeous”, placing his arm around herwaist, squeezing it,and stroking her back.32. Pupil A felt uncomfortable and tried to move away from RK. She said she did not want to say anything at the time because she did not want to make a scene and spoil what was a celebratory event for other people. She was very aware that she was at a professional network event, and she wanted to make a good impression. In her impact statement dated November 2021 she describes herself as a resilient person who was disappointed rather than distraught by what happened. However, she was worried and stressed about reporting RK and the prospect of having to give evidence. She was concerned that other members of the Bar would disapprove of her decision to report RK and that her career might be harmed.33. Whilst at Chambers, the [Appellant] had inappropriate physical contact with Pupil B. Later at Mojo, RK commented on her eyes and her figure, asked her how many men she had slept with and the age of the oldest man she had had sex with, asked her if she was in a relationship, told her repeatedly that she needed to “fucking have sex” with a man standing near her and with an older man. He told her that he, RK, was a sexually experienced older man and that she was frigid.34. Pupil B said she felt very vulnerable. She described herself as very timid, nervous, and shy. She had been told by her pupil supervisor that she was coming across as shy and quiet and that she needed to be more social. Accordingly, she felt she should go to the Silks’ event. She was sent home and given time off because she was so obviously upset when telling her supervisor about what had happened. The misconduct knocked her confidence and put her off attending future events on Circuit in case RK was there. For over two years after the incident, she continued to find professional events stressful, albeit less so. She felt that she would always feel anxious because of RK’s behaviour. She did not want to take part in these proceedings, but felt she had to do so because she felt that the [Appellant] should not be able to conduct himself in this way without consequences”.[31]This passage makes clear that the Tribunal had read and considered the two witness statements from Pupil A dated 16 February 2020 and 26 November 2021, where she described the Appellant “placing his arm around her waist, squeezing it, and stroking her back” and how the misconduct had affected her at the time and subsequently. The Tribunal had also clearly taken into account the three witness statements from Pupil B dated 16 February 2020, 20 June 2022 and 18 July 2023.[32]The Tribunal then addressed how the alleged misconduct had been reported and investigated, including the Appellant’s response to it:
“35. Both Pupil A and B reported the incident and made statements within days. Their Chambers reported the matter to RK’s Chambers and to the BSB. RK’s own Chambers also reported the matter to the BSB and began an internal disciplinary investigation. On 19 February 2020, RK’s head of Chambers emailed the statements by Pupils A and B to RK and encouraged RK to set out in writing his version of events. On 23 February RK wrote to the Chambers of Pupil A and B confirming that he had read and digested the statements and apologising for upsetting the pupils. RK wrote: “Whilst my recollection of the evening is different from what I have read, the most important issue is the fact that there are two people who have been upset by my conduct and that is of great shame to me.”
He acknowledged that alcohol had played a part and said he had approached organisations to help him overcome his problem drinking. He did not address the factual allegations. 36. On 25 February RK’s Chambers sent him full details of the allegations and required a written response by a set date of 28 February 2020. In particular, RK was required to say whether or not he accepted the factual allegations and, if not, to detail precisely which parts were disputed. He was also told that, in the event of any significant factual dispute Chambers would appoint an independent disciplinary panel to conduct a hearing. The Head of Chambers observed, correctly in our view, as follows:
“The allegations against you are serious but they are factually straightforward. They will not require a lengthy investigation. It is in the interests of all parties that the facts are established through a process which is fair, but which is conducted without unreasonable delay.”
At RK’s request, an extension of time to provide an outline response was granted to 6 March. In fact no response was received. What happened was that on 5 March the silk consulted by RK rang Chambers to inform them that RK had decided to resign with immediate effect and without responding to the charges. RK wrote a letter of resignation inwhich he said he had been advised that participation in the internal disciplinary proceedings in Chambers would prejudice any future hearing before the BSB”.[33]The Tribunal had clearly considered the evidence the Appellant’s Chambers had provided to the BSB concerning its investigation, comprising statements from the Head of Chambers and another member of the Chambers Management Committee with various appendices.[34]The Tribunal addressed the issues relating to the Appellant’s basis of plea concerning the February 2020 misconduct as follows:
“39. The Silks’ event was well attended; there was a lot of alcohol; spirits were high. RK was told by MH, a former pupil of his and close friend, that Pupil A and or Pupil B had referred to RK that evening as “a DILF” (meaning Dad I'd like to fuck). (MH confirmed in a statement that he had told RK this.) Without a better understanding of his responsibility as a more senior member of the Bar, RK “entered into jokey conversation about being called a DILF.”
RK realised now that as a more senior member of the Bar, he ought to have ignored the comments rather than mention them to the two females. He did not notice that any offence had been caused by his comments. Indeed, Pupils A and B went on to Mojo with RK’s “group.” His contact with Pupils A and B thereafter was limited as can be seen in the CCTV footage of Mojo. 40. The basis of plea was not accepted by the BSB. The BSB were not in a position to challenge that MH had told RK about an alleged DILF comment, but did not accept that either Pupil had made the alleged comment and did not accept that the [Appellant] had spoken to either pupil about it. Both Pupils A and B denied ever having made the alleged comment and said that they did not hear the other say this either. In Pupil A’s statement dated 26 November 2021 she says:
“I am aware that MH claims that I called Mr Kearney a “DILF”
. I understand this to mean an older man who I find attractive. I confirm that I did not make this comment. This is not a phrase that I use, let alone at a chambers event. It follows that Robert Kearney did not speak to me about me calling him a “DILF.” I cannot speculate as to why MH claims that I said this. In the context of the evening, it does not make sense. Pupil B and I spent most of the time at (the Chambers) aware of Mr Kearney’s behaviour. I did not make this comment.” In her statement dated 20 June 2022, Pupil B says of the alleged “DILF” comment:
“It is quite frankly absurd that I am even having to address this. It feels like an attempt to justify inappropriate behaviour and there is no justification for Mr Kearney’s conduct.” 41. In a supplementary basis of plea, RK challenged the account given by Pupils A and or B about what happened at Mojo. Here there was a difficulty for the Tribunal because the February 2020 statements by the Pupils had been redacted by agreement to exclude the references to which the [Appellant] objected. We were told by Mr Scamardella that the redactions (which we never saw) contained an assertion that the [Appellant] had plied one or both Pupils with drinks at Mojo and that the offensive comments had been relentless. The supplementary basis of plea reads: “Contrary to the suggestions made by the complainants, Mr Kearney buys just one drink in the entire time he is in Mojo’s. If there is any suggestion that he was plying the pupils with alcohol this is wrong and not borne out by the footage.”
It was agreed that there was no evidence in the footage that the [Appellant] had bought more than one drink. It was also agreed that the footage shows that RK only spent a few minutes in the company of the Pupils at Mojo and that there were always other people around. The [Appellant]’s case, when denying the charges, had been that the footage proved that the Pupils were unreliable witnesses who had provided exaggerated accounts”.[35]The Tribunal confirmed that they had not watched the entirety of the Mojo footage but had seen the sections of it that were played to them in the Tribunal room; and had read the Appellant’s log of the footage (which the BSB accepted) and the commentary on the footage provided by Pupil B in her second statement: [42]. The Tribunal noted that there was no audio on the footage. They described the section played to them as follows: “…we saw Pupil B sitting on her own on a bench on one side of a table. She was very close to a wall. Standing near the table was a man who appeared agitated. RK went over and positioned himself right next to Pupil B. RK is a heavily built man and he was very close to Pupil B who looked uncomfortable and who would have found it difficult to remove herself from that position. It was during this time that RK asked Pupil B a series of offensive questions and made several lewd comments”.[36]At [43], the Tribunal recorded that the Appellant’s case on the footage was that it showed him to be a “tactile man” because “he placed his arm around a man or men in a friendly way”, that he was being “appropriately tactile” with many people and that there was no sexual touching. The Tribunal continued:
“Given that the touching of the Pupils (which RK admits took place earlier that evening) was accompanied or preceded by lewd sexual comments, it is difficult to understand what exactly is meant by “being appropriately tactile.”
However, we are conscious that the touching pleaded by the BSB is “inappropriate contact and hand placement” and that is what RK has admitted so we sanction him on that basis”. (ii): Case 2021/4962[37]Case 2021/4962 involved sexual misconduct towards a mini-pupil known as Person A. The Tribunal set out the relevant facts as follows: “23. In July 2018, the complainant undertook a mini-pupillage with RK. The complainant was an undergraduate student who was interested in a career at the Bar and in obtaining a pupillage in the future. In the few days, that RK supervised her mini-pupillage, RK spoke to her and behaved towards her in a way that amounted to sexual harassment. The behaviour included inappropriate comments on her appearance, unwanted touching by pulling down the back of her dress to read the label, telling the complainant that it was a shame she would not be attending a social event with other barristers because he had “put on clean boxers just for you.” 24. The impact on the complainant of RK’s misconduct at the time was significant. She felt extremely uncomfortable when he commented on her appearance. She found his comment that he had put on clean boxers just for her repulsive. She spoke to her parents about the misconduct, and they wanted her to report it, but she did not do so at the time because she was worried that it might jeopardise her chances of obtaining a pupillage in the future. She also spoke to a family friend who practised at the Bar but when he said that he knew RK, Person A felt unable to confide in him”.[38]The Tribunal explained how the alleged misconduct had been reported and investigated, including the Appellant’s response to it, as follows: “25. The complainant’s decision to report RK was prompted by reading a report of a previous disciplinary finding against him. She felt that that if another pupil had been brave enough to report misconduct, then she too should report what had happened to her.26. Apart from RK’s misconduct, the complainant said that her experience at his Chambers was positive. She asked if she could return to see a sentencing hearing in a case she had observed and she asked RK to provide a reference.27. RK’s initial response to the allegations was to say he had no recollection of the alleged incidents and that, given the delay of over three years until they were reported and that he had already been suspended for a different matter, it was not in the public interest to pursue the matter”.[39]The Tribunal recorded that in October 2022 the Appellant had admitted this misconduct, summarising his basis of plea as follows:
“29. His comments were a poor attempt at humour and were not sexually driven or motivated. However, when taken together and with a much-enhanced level of understanding regarding acceptable conduct towards women, and particularly pupils or junior tenants, he accepted that the words used did amount to conduct of a sexually harassing nature. The touching of the complainant’s dress to read the label was inappropriate and on reflection should never have happened. At the time RK failed to recognise the upset he had caused. Had he known, he would have apologised unreservedly. He continued to assist the complainant for some months after her mini-pupillage with matters pertaining to her professional development”
.

The chronology of the investigation of the two cases before the Tribunal

[40]In light of the Appellant’s submissions about prejudice caused by delay on the part of the BSB, the Tribunal set out a detailed chronology of the proceedings at [44].[41]Within the chronology, the Tribunal noted the following events leading up to the 11 October 2022 hearing:(i) On 23 February 2020, the Appellant confirmed that he had read and digested the statements from Pupils A and B but that his recollection differed and apologised for the offence caused;(ii) On 6 March 2020 he had resigned from Chambers without having addressed the factual basis of the allegations such that the internal investigation by Chambers did not proceed;(iii) On 11 May 2020 he had emailed the BSB, denying the allegations, contending that at a hearing of the facts the pupils would have been shown to be mistaken in their evidence, referring to a “jokey conversation” with the pupils and suggesting that their statements might have been prompted by drink or mistake;(iv) There had been a series of emails in which the Appellant had insisted that the CCTV footage was critical and that the BSB should view it;(v) The BSB had gone back to Pupils A and B to check the points raised by the Appellant with them and this led to a lengthy delay: Pupil A’s further statement was dated November 2021 and Pupil B’s June 2022 (in the latter case, for reasons that were explained in the statement);(vi) On 25 March 2021 the complaint was made to the BSB in what became case 2021/4962;(vii) On 9 May 2021 the Appellant responded to the allegation in case 2021/4962, saying it was old and should be time-barred, that he could not remember the complainant, querying whether the sanction would have been greater if the matter had been heard alongside the other case in March 2021 and whether it was in the public interest to proceed given that he had been suspended and had been given guidance not to have more pupils;(viii) On 31 August 2021 the charges were served on the Appellant in case 2021/4962;(ix) On 26 June 2022, the papers in case 2020/0928 were served on the Appellant;(x) On 11 July 2022 directions were given including that the Appellant was required to comply with existing directions, including indicating whether he admitted or disputed the charges by 5 August 2022;(xi) On 30 August 2022 further directions were given regarding the 2021 case because of the Appellant’s failure to engage with the previous directions; and(xii) By 27 September 2022 the Appellant had still not complied with the directions to notify BTAS of the witness requirements for the 2021 case.[42]The Tribunal recorded that at the 11 October 2022 hearing the Appellant admitted all the charges for which he was later sanctioned. The hearing of charges 7-9 in case 2020/0928 was adjourned to 7-8 December 2022. That hearing was ineffective because the Appellant was unwell and applied to adjourn it. It had been established that he did not challenge the witness statements and documentary evidence on which the BSB relied such that they could be relied on at the sanctions hearing as background evidence. In those circumstances the BSB withdrew charges 7-9 as it was not in the public interest to continue.[43]The consolidated sanctions hearing listed for 9 December 2022 was adjourned on the grounds of the Appellant’s health to 5 January 2023. The sanction imposed at that hearing was appealed successfully by the Appellant to the High Court. The sanctions hearing was re-listed on 3 September 2024 but was ineffective because one member of the panel had had some previous involvement in the case and there were case management directions precluding this person being involved in the sanctions hearing. The sanctions hearing was then re-listed for 16 December 2024 and was effective on that date.

Submissions at the sanctions hearing on 16 December 2024

[44]Ms Iyengar opened the case for the BSB in accordance with the BSB’s Opening Note: [45].[45]The Tribunal summarised the Appellant’s case as follows: “46. We heard mitigation from Mr Scamardella. He stressed that the breaches were now old. It was now almost five years since the last incident. In the intervening years, the [Appellant] had reflected on his behaviour and had sought and followed appropriate advice. He had undertaken a number of courses some of which he had found particularly challenging. He had been forced to confront his behaviour and to recognise that, although he never intended to cause upset or offence, regrettably he had done so. He had been a sole practitioner for a number of years and no longer had responsibility for pupils. It was not just the [Appellant] who was saying that he had changed. There were powerful references from colleagues who had known him for a long time and who [had] spoken to him and worked alongside him more recently and who had witnessed the extent to which he had reflected on his behaviour and had changed. He would not return to his former ways. 47. A common theme of all the references was the [Appellant]’s deep commitment not just to his own work but to the profession generally. He was a kind man who was generous with his time, helping junior barristers with advice and helping many colleagues with IT. He was a hardworking and skilled advocate. He was a popular figure at the Bar. He was a larger than life character whose sense of humour sometimes crossed the line and was not to everyone’s taste, but he was never malicious and never intended harm or to cause offence”.[46]The Tribunal acknowledged the “strong references” provided by the Appellant and indicated that it “accept[ed] them at face value”. However, it bore in mind “the need for caution when deciding the weight to be attached to good references given the nature of all the charges”: [48].

The Findings of the Tribunal

[47]The Tribunal then turned to its findings of fact in regard to each of the disciplinary cases, acknowledging that both cases involved misconduct of a sexual nature, such that they fell to be considered under “Group B” of the Sanctions Guidance (at pages 41-43 thereof): [49].

(i) : Case 2020/0928

[48]The Tribunal considered the seriousness criteria in Group B and the criteria in the Annex: [50]. The seriousness criteria in Group B comprise a series of factors for culpability and harm which “may go towards determining the seriousness of the misconduct within this Group”. The “criteria in the Annex” are those in Annex 2, which sets out “general factors that should be used to assess seriousness of misconduct (Step 2 - Culpability and Harm) and in applying aggravating and mitigating circumstances (Step 4)”.[49]The Tribunal reached a unanimous view that “all the conduct [fell] within the Upper Range of seriousness both as to culpability and harm”: [50]. Its reasons were as follows:
“51. In terms of Culpability, the following factors apply: Culpability - Under Group B a. It took place in a professional context. b. It took place in front of others. c. It was directed at persons in a vulnerable situation. Culpability factors in the Annex d. The misconduct was reckless. e. It was sustained – it started in one venue and continued at the next venue. f. There was significant disparity in seniority and experience. g. The [Appellant] was responsible for the circumstances giving rise to the misconduct. He was already inebriated when he attended the event and it was he who approached the Pupils. h. The harm caused could easily have been foreseen. In fact the [Appellant] should have been acutely aware that his conduct was likely to be harmful given what had been said about his behaviour at the previous disciplinary hearings and given his own acknowledgement and regret after those earlier incidents. 52. In terms of Harm the following factors apply: Harm under Group B. a. Both A and B were uncomfortable and embarrassed on the night and felt anxious about making the report. The misconduct caused significant anxiety to Pupil B. b. The misconduct added to the stress of pupillage and the beginning of life at the Bar. c. It had a marked impact on the psychological wellbeing of Pupil B. d. It caused injury to the feelings of both Pupils. Harm factors in the Annex e. The detrimental impact on the public confidence in the legal profession is significant”
. Culpability - Under Group B Culpability factors in the Annex

Harm factors in the Annex

[50]The Tribunal noted at [53] that several of the Appellant’s referees had said that “crude language is prevalent at the criminal Bar in Manchester as a mechanism for letting off steam”. However, the Tribunal continued:
“…It may be, as suggested by some of the referees, that robust individuals of equal seniority do not take offence and are able to laugh off the [Appellant]’s bawdy sense of humour and perhaps give as good as they get. We are in no doubt that the offensive comments directed at the two young female pupils by the [Appellant], an older man, are examples of sexual harassment and that such harassment damages the reputation of the Bar.”
[51]The Tribunal concluded that there were no applicable aggravating factors in Group B, but that the following aggravating factors from the Annex applied: “54…a. Previous disciplinary findings for similar offences. At the time of these matters the [Appellant] had been sanctioned by his Chambers and by BTAS for his misconduct towards the male pupil in 2017 and he was aware that he was under investigation for his behaviour towards the female mini pupil in 2015. The similarities between his behaviour towards the male pupil and Pupils A and B are striking – offensive and lecherous comments and inappropriate touching whilst in drink. In 2018 the Tribunal chairman had warned the [Appellant] not to socialise professionally if he had been drinking. His head of Chambers had issued a similar warning. b. Lack of insight. His initial response was to explain his comments as innocent and harmless banter. He did not realise that Pupils A and B were upset by his behaviour. It was not until late 2022 that he recognised that his behaviour amounted to sexual harassment. c. The likelihood of repetition. Notwithstanding Mr Scamardella’s able submissions and the fact that there have been no reports of misconduct since 2020, we cannot ignore the fact that in the five years from 2015 to 2020 the [Appellant] behaved in a similar way towards five different junior members of the Bar. We are unanimous in our view that there remains a likelihood of repetition particularly if the [Appellant] is inebriated. d. Alcohol misuse was linked to the misconduct. e. The [Appellant] was a barrister of many years experience”.[52]The Tribunal concluded that there were no applicable mitigating factors in Group B, but that the following mitigating factors from the Annex applied: “a. The [Appellant] admitted the misconduct, albeit some 2 years and 10 months after the event. b. The [Appellant] has expressed remorse. c. The [Appellant] has taken voluntary steps to address his behaviour d. The [Appellant] has attempted to prevent recurrence. e. There are many referees, men, and women, who speak very highly of the [Appellant]”.[53]These factors led the Tribunal to conclude that the matters in 2020 fell “within [the] upper range of seriousness for which the indicative sanction is disbarment”: [56].[54]The Tribunal addressed the question of whether delay on the part of the BSB in investigating and prosecuting the complaint had prejudiced the Appellant as follows: “57…We are unanimous in our view that, although there was clearly delay on the part of the BSB, the [Appellant]’s own stance has contributed a great deal to the delay. He was aware of the allegations within days of the misconduct but, at no stage prior to October 2022, did he indicate a preparedness to admit any misconduct. We are not persuaded that the fact that it was not until June 2022 that the statements were served alongside the charges has caused any prejudice. The [Appellant] received the most important statements in February 2020 and confirmed that he had read and digested them. In June 2020, the allegations were summarised and in April 2021 the charges were served. We judge that the [Appellant]’s insistence that the BSB should view the footage was understandable and reasonable since it might have been relevant to any allegations of misconduct in Mojo. (We have not seen Charges 7-9 so we do not know if they relate to the time spent at Mojo.) However, we judge that it was open to the [Appellant] to indicate back in 2020 that he would admit the misconduct in the earlier part of the evening and that it was his choice, for whatever reason, not to admit anything until well over 2 years after the event. On a practical level, it is difficult to see how the 2020 charges could have been “rolled up” at the sanctions hearing in 2021 unless by then the [Appellant] had admitted at least some of the 2020 allegations and had sought to have a consolidated sanctions hearing”.[55]The Tribunal recalled at [58] the purposes of sanctions and found that(i) the maintenance of public confidence and trust in the profession and the enforcement of the system; and(ii) the need to act as a deterrent to the individual barrister or regulated entity, as well as the wider profession, from engaging in the misconduct subject to sanction, were particularly relevant. The Tribunal continued: “…there have been long standing concerns about sexual harassment at the Bar. Behaviour that might have been tolerated and even expected in the past is no longer acceptable. Regrettably, such behaviour is still widespread. Misconduct such as that exhibited by the [Appellant] needs to be deterred. We have borne in mind the fundamental principle of proportionality. We have considered with care whether, in all the circumstances, a term of suspension would suffice to mark the gravity of the offending. We have also considered whether the delay by the BSB together with the mitigating factors renders the indicative sanction unfair or disproportionate. We have concluded unanimously that they do not. In all the circumstances of this case, we judge that the only just and proportionate sanction is disbarment”. (ii): Case 2021/4962[56]The Tribunal analysed the facts of his misconduct as follows:
“59. The misconduct was towards a mini-pupil whose position might well have rendered her more vulnerable. It is not clear what, if any, recourse she had to complain within Chambers about the behaviour. We have borne in mind that the complainant subsequently contacted the [Appellant] to ask if she could go back to the sentencing hearing following the case in which she had observed Mr Kearney and that she also asked him for a reference. In our judgement, that serves to show what a difficult position she was in. She wanted to become a barrister and she would have been expected to obtain references and to make use of contacts at the Bar.”
[57]The Tribunal identified the following factors in determining seriousness:
“60. Culpability Under Group B a. The misconduct took place in a professional context. b. It was directed at a person in a vulnerable position. Culpability From the Annex c. The comments and behaviour were intentional. d. The misconduct was repeated over a few days. e. The [Appellant] acted in breach of a position of authority. f. There was significant disparity in seniority between the [Appellant] and the complainant. g. The harm could have reasonably been foreseen. h. The [Appellant] had control over and was responsible for the circumstances. Harm from Group B a. It caused the complainant to feel humiliated and she was anxious about reporting the matter. Harm from the Annex b. The impact on public confidence in the legal profession is significant”
. Culpability From the Annex Harm from Group B

Harm from the Annex

[58]Again, the Tribunal concluded that there were are no applicable aggravating factors in Group B, but that the following aggravating factors from the Annex applied: “a. Previous disciplinary findings for similar offence (i.e. the mini-pupil in 2015). The instant offence took place just a few months after the [Appellant]’s misconduct towards the male mini-pupil for which he had apologised and had promised that it would not recur. i. Lack of insight until admission in 2022. j. Likelihood of repetition (as demonstrated by the misconduct in February 2020). k. The [Appellant] was a senior member of the Bar”.[59]In terms of mitigating factors, the Tribunal found none from Group B, but that the following from the Annex applied: “a. Admission of misconduct. l. Expression of remorse. m. Good references”.[60]The Tribunal continued:
“61. In our judgement, taken individually, the incidents do not fall within the upper range of seriousness. However, we conclude that cumulatively they do cross that threshold. We have reached this conclusion taking into account the number of incidents over the days that the complainant spent as the [Appellant]’s mini-pupil and especially the fact that this episode of misconduct followed so closely in time the misconduct in 2017 and occurred at a time when the [Appellant] was subject to a disciplinary process in his Chambers and when he knew that he had been reported to the BSB. It may be that in July 2018 the [Appellant] felt there was nothing wrong with his conduct towards the mini-pupil or that he felt he would not be reported. 62. We have again borne in mind the purposes of sanctions. The purposes identified above as particularly relevant to the 2020 matters apply equally here. We have considered whether a period of suspension would be a just and proportionate sanction. We have concluded unanimously that a period of suspension would not suffice to mark the gravity of the offending. We judge that the only just sanction is disbarment and that it is a proportionate sanction in all the circumstances of this case”
.

The legal framework

[61]In Ahmad v Bar Standards Board [2024] EWHC 3248 (Admin) Lang J provided the following summary of the statutory context, which I gratefully adopt: “33. The Courts and Legal Services Act 1990 designated the Bar Council as the authorised body for the profession. The BSB was set up under the Legal Services Act 2007 to act as the specialist regulator of barristers in England and Wales. Its regulatory objectives derive from the Legal Services Act 2007, section (1). The BSB publishes the Bar Standards Handbook (“the Handbook”) which contains inter alia the Code of Conduct, comprising the Core Duties and rules which supplement the Core Duties. “Outcomes” and “Guidance” on the Code of Conduct are also published.34. As to rights of appeal, section 24 of the Crime and Courts Act 2013 abolished the jurisdiction of the Visitors of the Inns of Court, and made provision in subsection (2) for the General Council of the Bar and the Inns of Court to confer a right of appeal to the High Court in respect of, inter alia, a matter relating to regulation of barristers. Subsection (6) provides that the High Court may make such order as it thinks fit on an appeal. Rights of appeal are conferred by the Disciplinary Tribunal Regulations 2017, and under rE236, the Appellant has a right of appeal against findings and/or sanction”.35. CPR 52.20 confers power on the appeal court to affirm, set aside or vary the orders of the Tribunal. It has the same powers as the Tribunal.36. CPR 52.21 provides, so far as is material that: “Hearing of appeals 52.11 (1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing… (3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence”. “Hearing of appeals (1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing… (3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence”.[62]At [37], Lang J observed that an appeal against the decision of a Disciplinary Tribunal is by way of review, not re-hearing. However, she explained that the nature of an appeal by way of review under rule 52.11 is “flexible and differs according to the nature of the body which is appealed against, and the grounds upon which the appeal is brought”. She cited the following passage from E I Dupont de Nemours & Co v S T Dupont [2003] EWCA Civ 1368, [2006] 1 WLR 2793, at [92]-[94], per Aldous LJ: “92. CPR Pt 52 draws together a very wide range of possible appeals. It applies, not only to the Civil Division of the Court of Appeal, but also to appeals to the High Court and county courts….it applies to a wide variety of statutory appeals where the nature of the decision appealed against and the procedure by which it is reached may differ substantially...93. It is accordingly evident that rule 52.11 requires, and in my view contains, a degree of flexibility necessary to enable the court to achieve the overriding objective of dealing with individual cases justly. But as Mance LJ said on a related subject in Todd v Adams and Chope (trading as Trelawney Fishing Co) [2002] 2 All ER (Comm) 97, it cannot be a matter of simple discretion how an appellate court approaches the matter.94. As the terms of rule 52.11(1) make clear, subject to exceptions, every appeal is limited to a review of the decision of the lower court. A review here is not to be equated with judicial review. It is closely akin to, although not conceptually identical with, the scope of an appeal to the Court of Appeal under the former RSC. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material. Rule 52.11(4) expressly empowers the court to draw inferences....”.[63]At [39], Lang J cited Law Society v Salsbury [2008] EWCA Civ 1285, where the Court of Appeal upheld a decision of the Solicitors Disciplinary Tribunal striking a solicitor off the roll. At [30], having reviewed the authorities, Jackson LJ gave the following guidance as to the correct approach on an appeal of this nature: “…the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)”.[64]In Salsbury at [38], Jackson LJ held that in his view the Solicitors Disciplinary Tribunal’s decision was correct, both in law and on the facts. He continued: “However, even if the case were regarded as being on the borderline, the Divisional Court was not entitled to interfere with the sentence imposed. The Court ought to have paid proper respect to the decision of the Tribunal, which was an expert and informed body, particularly well-placed to assess what measures were required to deal with Mr Salsbury and to protect the public interest. The Divisional Court could not be satisfied that the sentencing decision reached by the Tribunal was clearly inappropriate”.[65]Applying these principles, Lang J approached the appeal in Ahmad by asking whether the sanction imposed was either “wrong” or “clearly inappropriate”, finding that neither description applied on the facts: [64].

The grounds of appeal in overview

[66]The Appellant advanced five grounds of appeal against the sanction imposed by the Tribunal, to the following effect: Ground 1: The Appellant’s rehabilitation was wrongly characterised as “personal mitigation”; Ground 2: The Appellant was afforded insufficient credit for the mitigating features listed in Annex 2 of the BTAS Sanctions Guidance; Ground 3: The Tribunal failed to give any or sufficient consideration to the “totality” principle; Ground 4: The Tribunal failed to give any or sufficient regard to the fact that the conduct complained of and the reporting of it occurred in 2018 and 2020, before the coming into force of the applicable sentencing regime; and Ground 5: The Tribunal failed to explain why it had concluded that a long suspension was not a suitable sanction and the justice of the case was not met by disbarment, which is the sanction of last resort.

Ground 1: Evidence of the Appellant’s rehabilitation

[67]Under Ground 1, the Appellant referred to the character evidence he had placed before the Tribunal. This consisted of fourteen statements from leading and junior barristers, solicitors and a member of staff in the Appellant’s Chambers. Some were people who had known the Appellant for many years and some had only known him since the disciplinary proceedings began.[68]Several of the statements referred to the positive changes the Appellant had made both in a work and social setting, mentioning, variously, the fact that the Appellant no longer attended any Bar or Circuit social events, the relevant Bar Council courses he had attended and his attempts to understand and moderate his behaviour.[69]Mr Scamardella KC contended that the real value of this evidence was how it demonstrated the Appellant’s rehabilitation, a factor which the Tribunal would have been bound to reflect in the sanction had they received the evidence in the appropriate way. However, he argued, the Tribunal had wrongly characterised this evidence as “personal mitigation”. This meant that it was afforded limited weight in accordance with paragraph 5.11 of the Sanctions Guidance, which provides as follows: “Mitigation based on the respondent’s personal circumstances, health, good character/references need to be treated with caution in the context of sexual misconduct, discrimination and harassment. The nature of such misconduct means that serious sanctions are required to protect others and promote standards regardless, in most instances, of the respondent’s own circumstances”.[70]Indeed, he contended that the Tribunal had almost “entirely disregarded” the evidence. I cannot accept that submission. The Tribunal specifically acknowledged the strong references the Appellant had provided and indicated that they had accepted their contents: see [46] above.[71]Mr Scamardella KC is right to highlight that the Tribunal bore in mind the need for caution when deciding the weight to be attached to good references given the nature of all the charges: again, see [46] above. However, this was entirely consistent with paragraph 5.11 of the Sanctions Guidance as this evidence amounted, in large part, to statements about the Appellant’s “good character” and “references” about him, within paragraph 5.11: indeed they were described on the Appellant’s appeal bundle index as the “character witness bundle”. Further, the Tribunal clearly afforded them some weight: the Tribunal specifically acknowledged the large number of good references from both men and women as a mitigating factor in both sets of proceedings: see [52] and [59] above.[72]Nor did the Tribunal ignore those parts of some of the statements which referred to the positive changes the Appellant had made, or the further details Mr Scamardella KC had provided at section 3 of his September 2024 Mitigation Note (where he referred, for example, to the Appellant having undergone alcohol and self-awareness counselling). Indeed, the Tribunal specifically acknowledged the Appellant’s position that he had undertaken “a number of courses some of which he had found particularly challenging” and had “been forced to confront his behaviour”; noted his reliance on “powerful references from colleagues who had known him for a long time and who [had] spoken to him and worked alongside him more recently and who had witnessed the extent to which he had reflected on his behaviour and had changed”; and identified the fact that the Appellant had taken voluntary steps to address his behaviour and his attempts to prevent recurrence as mitigating factors in case 2020/0928: see [45] and [52] above.[73]The Tribunal also explicitly acknowledged that there had been no reports of misconduct since 2020: see [51] above.[74]However, in my judgment, notwithstanding these points, the Tribunal was justified in concluding that there remained a risk that the Appellant would repeat the misconduct alleged, particularly if inebriated, for the following reasons.[75]First, as the Tribunal noted, in the five years from 2015 to 2020 the Appellant had behaved in a similar way towards five different junior members of the Bar: see [51] above.[76]Second, the Appellant had committed the July 2018 misconduct “just a few months after [his] misconduct towards the male mini-pupil [in October 2017] for which he had apologised and had promised that it would not recur [in January 2018]” and “at a time when the [Appellant] was subject to a disciplinary process in his Chambers and when he knew that he had been reported to the BSB”: [58] and [61] above.[77]Third, the Appellant had committed the February 2020 misconduct at a time when he “had been sanctioned by his Chambers and by BTAS for his misconduct towards the male pupil in 2017 and he was aware that he was under investigation for his behaviour towards the female mini pupil in 2015”: [51] above.[78]Fourth, the February 2020 misconduct involved “similarities” in behaviour to the misconduct towards the male pupil in 2017 that were “striking”, namely “offensive and lecherous comments and inappropriate touching whilst in drink”, in circumstances where “in [November] 2018 the Tribunal chairman had warned the [Appellant] not to socialise”: [51] above.[79]Fifth, the Tribunal was aware that the Appellant had attended the Silks’ party and Mojo bar on 13 February 2020 after seeking an exemption from his Head of Chambers from his undertaking to refrain from attending social functions (while already at the Silks’ party).[80]Sixth, the Appellant’s character references did not suggest that he had removed himself entirely from work-related social events: on the contrary, two of them specifically spoke of him attending “drinks at several local bars” and “drinks and/or dinner locally” when conducting trials away from home.[81]For these reasons I do not consider that the way in which the Tribunal assessed the Appellant’s evidence of rehabilitation, or indeed the wider character evidence he advanced, was in any way “wrong”. Ground 2: The Appellant was afforded insufficient credit for the mitigating features listed in Annex 2 of the BTAS Sanctions Guidance[82]As noted at [52] and [59] above, across the two cases the Tribunal identified as mitigating factors(i) the Appellant’s admissions of misconduct;(ii) his expressed remorse;(iii) the voluntary steps he had taken to address his behaviour;(iv) his attempts to prevent recurrence; and(v) his numerous good references.[83]Under Ground 2, in contending that the Appellant had been given insufficient credit for mitigating factors, Mr Scamardella KC’s submissions focussed on the following themes.[84]First, he took issue with the Tribunal’s observation that although the Appellant had admitted the 2020 misconduct, this was “some 2 years and 10 months after the event”: [52] above. He contended that this was unfair: the Appellant had admitted the misconduct in general terms weeks after the incident in an email sent to the BSB on 15 May 2020, but he was entitled to await the analysis of the CCTV before indicating the basis on which he admitted misconduct, as it was important that he was sanctioned on a proper basis that was agreed with the BSB.[85]However, the Tribunal had before them the Appellant’s letter to the Chambers of Pupil A and Pupil B, his initial response to the BSB regarding the complaints, his subsequent responses, the basis of plea and his witness statements. The Tribunal could therefore see what he had admitted and when.[86]The Tribunal were well aware of the reliance the Appellant placed on the CCTV in respect of events in the later part of the evening of 13 February 2020 and acknowledged that his insistence that the BSB should view the footage was “understandable and reasonable”. However, the Tribunal had concluded, justifiably, that it would have been open to the Appellant to indicate “back in 2020 that he would admit the misconduct in the earlier part of the evening and that it was his choice, for whatever reason, not to admit anything until well over 2 years after the event”: see [55] above.[87]Second, Mr Scamardella KC submitted that the mitigating factor of co-operation with the BSB investigation was present and had wrongly been omitted from the Tribunal’s consideration. However, the Tribunal had carefully analysed the chronology of communications between the Appellant and the BSB and was entitled to form the view that the Appellant’s stance in the proceedings had itself “contributed a great deal to the delay” in the proceedings: see [54] above. This justified the Tribunal in not specifically identifying this factor as a mitigating feature.[88]Third, counsel criticised the Tribunal for effectively moderating their findings with respect to remorse by finding that the Appellant lacked “insight”. Refusing to accept the BSB’s case in full, he argued, is not to be confused with a lack of remorse or insight.[89]In my judgment the Tribunal were entitled to reach the view they did: as they observed, the Appellant’s initial response to the 2020 allegations was “explain his comments as innocent and harmless banter”, he “did not realise that Pupils A and B were upset by his behaviour”; and it was “not until late 2022 that he recognised that his behaviour amounted to sexual harassment”: [51] above. These matters are all consistent with an ongoing lack of insight.[90]For these reasons I conclude that there was nothing wrong in the manner in which the Tribunal identified and applied the relevant mitigating factors. Their approach to this issue was entirely consistent with the Sanctions Guidance and the particular facts of the Appellant’s case.

Ground 3: The Tribunal failed to give any or sufficient consideration to the “totality” principle

[91]Under Ground 3, Mr Scamardella KC submitted that the “crossover” between the dates of the commission of offences and the dates they were reported and then sanctioned required the Tribunal to approach the issue of sanction in these proceedings more subtly than a “mere arithmetical tacking on of one sentence to another”. He argued that if all offences were sentenced together, there would have been an immediate recognition of the totality principle. This ought not to change because the sanction dates are years apart.[92]The totality principle is reflected in Step 5 of Group B of the Sanctions Guidance, to the effect that: “Where there are multiple charges arising from one incident, separate incidents, or multiple examples of the same behaviour on different occasions over a period of time panels should ensure that the totality of the sanctions is warranted based on the cumulative seriousness of the charges. Panels will need to decide, where applicable, whether the sanction on each charge should run concurrently or consecutively”.[93]Counsel submitted that proper application of the totality principle would have led to a more lenient approach to sanction being taken, yet the Tribunal made no mention of the principle, suggesting that it was not given proper consideration.[94]This was undoubtedly a procedurally complex case, but as explained above the Tribunal was at pains to set out when each incident of misconduct occurred, when it was reported, and when it was addressed before the different Tribunals.[95]The Appellant had engaged in “multiple examples” of similar behaviour on different occasions over a period of time, but had continued to commit acts of misconduct despite knowing of the concerns raised about his conduct by his Chambers and his regulator. This factor justified the view that this was not simply a case of “multiple examples” of similar behaviour.[96]The Tribunal had been directed to paragraph 6.39 of the Sanctions Guidance, to the effect that the cumulative impact of repeated misconduct at a lower level can be such that the risk to the public of a barrister who does not meet the professional standards expected, despite previous sanctions, is so great that only disbarment can meet that risk. It applied that logic in relation to the series of incidents in the 2018 misconduct: see [60] above.[97]The Tribunal also reached separate conclusions about the appropriate sanction for each of the two cases before it: the Tribunal specifically avoided “tacking one sentence to another”, but rather concluded that disbarment was appropriate for each case.[98]I do not therefore detect anything wrong in the manner in which the Tribunal approached the totality issue. Ground 4: The Tribunal failed to give any or sufficient regard to the fact that the conduct complained of and the reporting of it occurred in 2018 and 2020, before the coming into force of the applicable sentencing regime[99]As noted at [14] above the Appellant had conceded that the Tribunal should apply Version 6 of the Sanctions Guidance which came into effect on 1 January 2022. However under Ground 4 he argued that the Tribunal had erred in nevertheless failing to take into account the fact that the 2018 and 2020 misconduct had all occurred and been reported under the previous sentencing regime (or, properly, Sanctions Guidance); and it was the delays by the BSB which had led to Version 6 becoming applicable. The BSB had requested and been granted at least twelve adjournments without ever providing proper details as to why the additional time was needed.[100]As Ms Iyengar highlighted, the BTAS procedural rules and Sanctions Guidance documents are inevitably updated from time to time, as part of the proper administration of justice. The proper administration of justice includes the role which the Council of the Inns of Court plays in endorsing Sanctions Guidance. Consistent with this approach, Version 6 had been implemented. As the introduction to the document explained, the main changes since Version 5 included “revised ranges for particular sanctions; in particular, the lower end of the range for “Misconduct of a sexual nature” and for “Discrimination and non-sexual harassment” has been increased to 12 months suspension”. However, whilst intended to afford guidance, the document is “not prescriptive”: Tribunals are “free to depart from this Guidance where appropriate, but where that occurs, they must be sure they can, and do, explain their reasons with clarity”.[101]Where appropriate, transitional rules are deployed in order to avoid unfair prejudice. No relevant transitional rules existed which could disapply the Sanctions Guidance to cases heard after 1 January 2022. Accordingly, there is no doubt that the Tribunal was correct in applying Version 6. In those circumstances it is not entirely clear on what basis, or how, the Tribunal might properly have had regard to Version 5.[102]Further, the Tribunal rejected the Appellant’s submissions that the BSB’s delay had placed him in an unfair position, having analysed the chronology with care. This was a justified conclusion, for the reasons the Tribunal gave: see [54] above.[103]Even if the Tribunal should have had regard to Version 5, I do not accept that it is necessarily the case – as Mr Scamardella KC submitted – that disbarment would not have followed, given the serious and repeated nature of the misconduct here and the fact that the Sanctions Guidance is not prescriptive.[104]Accordingly, there was nothing wrong in the approach the Tribunal took to the applicable Sanctions Guidance. Ground 5: The Tribunal failed to explain why it had concluded that a long suspension was not a suitable sanction and the justice of the case was not met by disbarment, which is the sanction of last resort[105]Under Ground 5, Mr Scamardella KC relied on the principle, accepted by the BSB, that disbarment is the sanction of last resort and must be reserved only for those cases where no other sentence is justifiable.[106]He relied on the fact that the BSB had not sought disbarment in this case. However, as the BSB had explained in its Opening Statement, it is the BSB’s policy to limit its submissions on sanction to pointing out the relevant parts of the Sanctions Guidance and the factors which the Tribunal should consider during its deliberations; and to avoid making submissions on what sanction a tribunal should impose". The BSB had invited the Tribunal to consider the full range of sanctions.[107]He contended that Farquharson v Bar Standards Board [2022] EWHC 1128 (Admin) assisted in showing the proper sanction that should have been imposed in his case. There, periods of suspension were considered appropriate sanctions in respect of a senior male barrister who had been convicted of criminal sexual assault on a female barrister colleague. Aside from the fact that the sexual assaults in Farquharson took place in a nightclub which bears some similarity to the events in this case that took place in the Mojo bar, the facts and procedural history in Farquharson were very different from those in this case. Sanctions Guidance Version 6 was also not applicable given the relevant dates.[108]Finally, Mr Scamardella KC submitted that the Tribunal had failed to explain why they came to the conclusion that disbarment was necessary and that a long suspension was not a suitable sanction. The justice of the case would have been met by such a suspension, in light of the fact that the sexual misconduct was not of the gravest kind, and in light of the significant mitigation available to the Appellant. Accordingly, the sanction imposed on the Appellant was manifestly excessive and he ought not to have been disbarred.[109]I cannot accept either part of this submission. The Tribunal conducted a detailed and careful exercise, identifying and weighing matters relevant to culpability and harm and aggravating and mitigating factors. They gave detailed and clear reasons. Together, these fully explain why the Tribunal did not consider that a further period of suspension was the appropriate sanction.[110]The Tribunal was considering an unusually serious situation in that the Appellant was being sanctioned for two disciplinary cases involving sexual misconduct towards one mini-pupil and two pupils, and had already previously been sanctioned for sexual misconduct twice by way of sexual harassment of a mini-pupil and a pupil. The Tribunal, when considering what sanction to impose, was fully entitled to have regard for his pattern of misconduct, and to reflect on the question of why the previous investigations and sanctions had been ineffective in preventing his misconduct towards Pupil A and Pupil B. For cases within the upper range of seriousness, which both cases were for the reasons the Tribunal gave, the Sanctions Guidance made clear disbarment was the “indicative sanction”: [49], [53] and [60] above.[111]In those circumstances the sanction of disbarment was not manifestly excessive; nor was it wrong or clearly inappropriate, which is the test applicable to this appeal.

Conclusion

[112]For all the reasons I have given, I do not consider that the sanction imposed either “wrong” or “clearly inappropriate”. Accordingly, despite the very able way in which it was advanced by Mr Scamardella KC, this appeal is dismissed.