John Stenhouse v The Bar Standards Board [2026] EWHC 1117 (Admin)

[2026] EWHC 1117 (Admin)

Case No AC-2025-BHM-000200

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Birmingham Civil Justice Centre

33 Bull St

Venue Birmingham

Date 13/05/2026

B4 6DS

Before

MRS JUSTICE JEFFORD

Between

JOHN STENHOUSEAppellant

THE BAR STANDARDS BOARDRespondent

John Stenhouse (the Appellant in person) for in person

Leo Davidson (instructed by The Bar Standards Board) for Respondent

Hearing Hearing date: 28 th October 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on Wednesday 13 th May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

MRS JUSTICE JEFFORD

[1]This is an appeal by John Stenhouse, a barrister, against the decision of a Disciplinary Tribunal in its Report of Finding and Sanction dated 23 June 2025 (“the decision”).

[2]The proceedings before the Disciplinary Tribunal arose out of emails sent by Mr Stenhouse in the context of proceedings before the First-tier Tribunal (Tax Chamber) relating to Mr Stenhouse’s own tax affairs. In this judgment, I shall refer to the Disciplinary Tribunal as the DT (other than when the DT refers to itself as the Tribunal) to avoid confusion with the First Tier Tribunal or FTT.

The factual background

[3]This is not a case in which the DT was called upon to make any findings of primary fact on contested evidence. Almost everything was in writing and the issues turned on the interpretation of the written word. The facts set out in the DT’s decision are largely repeated in this judgment.

[4]In September 2022 Mr Stenhouse issued an appeal to the FTT against late payment penalties notified to him by HMRC. By the time the Notice of Appeal was submitted HMRC had either cancelled the penalties or reduced them to nil but Mr Stenhouse wished to pursue a claim for compensation within the appeal proceedings. Directions were made on 22 November 2022.

[5]John O’Shea had conduct of the appeal on behalf of HMRC. He was described as a Litigator within “Legal Operations/ Solicitor’s Office and Legal Services” of HMRC. By email sent on 12 December 2022 Mr O’Shea sent a letter to Mr Stenhouse. The email stated that a copy of the letter had been sent to the FTT.

[6]In summary, in the letter, Mr O’Shea noted that the penalties had been reduced to nil or cancelled and that payments had been allocated to ensure that interest charges were correct. Two interest charges were confirmed as still payable. Mr O’Shea stated that interest was a statutory charge with no right of appeal and was, therefore, outside the jurisdiction of the FTT. He continued:

“There is no tax owed for the years 2019-2020 and 2020-2021, and there are no late filings or late penalties charged for either year. In this case the Respondents consider that there is nothing further under appeal and the Respondents will be requesting the Tribunal to close their file.”

In the DT’s decision there is a slight misquote of this passage in that the word “requesting” is given as “requiring”. However, the DT recorded that, in his evidence, Mr Stenhouse considered that this passage amounted a request for the FTT to strike out his appeal.

[7]The letter further stated that any claim for compensation should be referred to HMRC’s Complaints Team and that the FTT had no jurisdiction to deal with complaints. The letter included a paragraph as to costs, in short saying that any application should be made under rule 10 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 and that HMRC would respond should any claim be submitted.

[8]The same day, Mr O’Shea sent a separate email to “Tax Appeals” at FTT (using an email address taxappeals@justice.gov.uk) attaching his letter to Mr Stenhouse and saying “since there is nothing further under appeal the Respondents request that this file is closed”. The DT noted that he did not copy that email to Mr Stenhouse. The email consisted of two paragraphs. In the first paragraph, Mr O’Shea confirmed that there were no outstanding penalties and said that, since there was nothing further under appeal, HMRC requested that the file was closed. In the second paragraph, he said that the letter to Mr Stenhouse responded to him on costs and summarised HMRC’s position. Lastly, Mr O’Shea said that a copy of the complaints procedure had been provided to the appellant; that HMRC would contend that this was “the recourse relevant to the Appellant’s concern and the compensation sought”; and that that procedure was separate from the appeal to the Tribunal. I observe that although that constituted representations by HMRC, it added nothing to the content of the attached letter that had been sent to Mr Stenhouse.

[9]Also on 12 December 2022, Mr Stenhouse replied by email to Mr O’Shea with “Tax Appeals” copied in. He set out in some detail why he considered HMRC’s letter to be inaccurate and the basis on which he considered that the FTT had power to award damages which largely turned on section 15 of the Tribunals Courts and Enforcement Act 2007. He said expressly that he rejected the assertion that there was nothing further in the appeal; that he did not withdraw the appeal; and that he did not consent to the appeal being dismissed.

[10]There were further email exchanges between Mr Stenhouse and Mr O’Shea on 14, 20 and 21 December, each email being copied to “Tax Appeals”. These exchanges were mostly about statements of account. Mr O’Shea also made the points that Section 15 only bestowed a power on the Upper Tribunal and that, for any complaint about the handling of Mr Stenhouse’s tax matters, the “correct avenue” was the HMRC Complaints Procedure.

[11]John Fairweather, a Senior Tribunal Caseworker at the FTT, had conduct of the appeal. He wrote to Mr Stenhouse on 6 February 2022 (copied to Mr O’Shea) saying that the parties’ correspondence in December had been passed to him to consider. Mr Fairweather made the general observation that the FTT could only consider matters within its jurisdiction and, having looked at the notice of appeal and the more recent emails, said:

“ … the matters that fall within our jurisdiction are appeals against late filing and late payment penalties following the submission of self-assessment. HMRC have indicated that the penalties under appeal have been reduced to nil or cancelled.”

[12]Under the heading “Matters outside our jurisdiction”, Mr Fairweather continued:

“My understanding is that there is no right of appeal against interest charged on a direct tax or against a self- assessment, as it is a record of your own return.”

Mr Fairweather stated that, if HMRC thought that there had been a mistake, there were different processes that could be followed which might or might not result in an appealable decision. He also explained that the FTT did not have jurisdiction to deal with complaints about HMRC and that section 15 applied to the Upper Tribunal.

[13]Under the heading “Next steps, costs and directions”, Mr Fairweather then said:

“As there does not appear to be any remaining matters within the Tribunal’s jurisdiction I have set out a direction below for the appellant to comply with. Should the appellant wish to pursue an application for costs they are entitled to do so in accordance with Rule 10 of our rules and procedures.”

[14]The “direction below” set aside the directions of 22 November 2022. It then provided that within 14 days Mr Stenhouse should confirm to HMRC and the FTT how he wished to proceed with the appeal and:

“If the appellant does wish to continue with an appeal to the Tribunal they should confirm the exact matters that remain in dispute, copies of decision letters that show the matters that remain in dispute, and confirmation of the legislation that provides a right of appeal to this Tribunal ….”

. The directions provided that if Mr Stenhouse did not do so, the matter would be referred to a judge “to consider if the proceedings should be struck out.” (my emphasis)Provision was also made for either party to apply to amend or suspend the directions.

[15]Mr Stenhouse responded by email dated 16 February 2023. The contents of this email formed the basis of charge 1(a). As set out in the Charge Sheet the material parts of the email were to be found in Annex A thereto (with emphasis added as added in the Annex) as follows:

“ … it is quite obvious that HMRC (John O’Shea) has contacted the Tribunal and has made representations to John Fairweather to persuade John Fairweather that there is nothing further for the Tribunal to deal with and to have the Directions Order made on 22 November [set aside]. John Fairweather has done what he was asked to do by the Tribunal for the benefit of HMRC. This is completely unacceptable. I should have been provided with a record of any representations made by HMRC/ John O’Shea to the Tribunal and asked to comment on these representations BEFORE any decisions or action was taken by the Tribunal on those representations. What has actually happened here is that a secret proceeding has taken place leading to a Directions Order of the Tribunal being set aside on the basis of secret representations to the Tribunal.”

Further:

“… HMRC/ John O’Shea has informed John Fairweather, and John Fairweather has accepted, that my Appeal to the Tax Chamber falls outside the jurisdiction of the Tax Chamber because the jurisdiction of the Tax Chamber is limited entirely to “matters that fall within our jurisdiction, are appeals against late filing and late payment penalties”

. It is said that HMRC has now dealt with late payment penalties raised against me and therefore there is nothing left in the Appeal that falls within the jurisdiction of the Tax Chamber and therefore my appeal should be closed or struck out. John Fairweather also states in his email under “Matters outside our jurisdiction” that “My understanding is …” and then goes on to state what the Tribunal can and cannot do. He identifies no authority for this statement of the Tribunal’s jurisdiction, which is plainly no more than what he has been instructed to say by HMRC/John O’Shea.” Further:

[16]I observe that, on any view, in important respects, this email misunderstood and/or misrepresented the email of 6 February 2023. Mr Fairweather had not accepted that there was nothing left in the appeal that fell within the jurisdiction of the FTT and, as the DT said in its decision, the FTT did not, therefore, accede to the “requirement” by HMRC. The thrust of the email was certainly that it was Mr Fairweather’s understanding that there was nothing left that was within the FTT’s jurisdiction other than costs but his directions expressly invited Mr Stenhouse to make submissions as to what remained in dispute and the basis for the FTT’s jurisdiction. Thereafter, the matter would be referred to a judge to consider and make a decision.

[17]On theface of what was said in Mr Fairweather’s email, he had considered the parties’ correspondence in December. All of that had been seen by all three of Mr O’Shea, Mr Stenhouse and Mr Fairweather with one minor exception. The minor exception was Mr O’Shea’s email of 12 December 2022 which sent to the FTT his letter to Mr Stenhouse of the same date. Mr Fairweather did not simply parrot what had been said by Mr O’Shea in that email or the letter. At the time Mr Stenhouse wrote his email, he would not have seen that email from Mr O’Shea and it could not have been the basis of his allegation of a secret proceeding or secret representation which was, therefore, entirely his own inference. In due course, the evidence of the Chamber President – see below - was that there was no further correspondence between HMRC and the FTT which was not copied to Mr Stenhouse.

[18]On 4 April 2023, Mr Fairweather again emailed Mr Stenhouse (copied to Mr O’Shea). He apologised for the delay in responding to the email of 16 February and explained that, in view of its contents, he had passed it to the Chamber President, Upper Tribunal Judge Sinfield. Judge Sinfield’s comments were then provided. These were detailed but, so far as material to the present appeal, and in summary, Judge Sinfield’s comments included the following:(i) He explained that the FTT’s jurisdiction was entirely statutory; that once the penalties had been withdrawn, there was no appealable decision; that, as Mr Fairweather had set out, that did not mean that the proceedings were at an end as there might be further consequential applications, for example, for costs; but that any other matters would have to be the subject of proceedings elsewhere.

(ii) He explained why the claim for damages could not, as Mr Stenhouse had suggested, be transferred to the Upper Tribunal under rule 5(3)(k) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.

(iii)

The judge then said:

“Rule 8(2) of the FTT Rules provides that the Tribunal must strike out the whole or part of the proceedings if the Tribunal does not have jurisdiction in relation to them and does not exercise its power under rule 5(3)(k)(i) FTT Rules. It appears to me that such a strike out is appropriate in this case but before doing so I give Mr Stenhouse 14 days from the date of this letter to make any representations as to why these proceedings should continue.”(my emphasis) (iv) The judge then referred to the passages quoted above from Mr Stenhouse’s email of 16 February. He continued: “Mr Stenhouse is accusing Mr Fairweather of failing to discharge his functions as a Senior Tribunal Caseworker in good faith and of acting at the behest of HMRC to the prejudice of Mr Stenhouse. Mr Stenhouse provides no evidence to substantiate these allegations.” (v) The judge stated that he had asked for the file to be checked and that the only correspondence not copied to Mr Stenhouse was Mr O’Shea’s email of 12 December. That was now attached. He noted that, although the email should have been copied to Mr Stenhouse, it said nothing that was not in the letter attached. (vi) Judge Sinfield concluded: “There were no undisclosed representations or “secret proceeding” in this case and I reject the allegations that HMRC controlled the Tribunal and told Mr Fairweather what to say to Mr Stenhouse as completely baseless.”

[19]Mr Stenhouse responded by email addressed to the Tax Appeals address on 17 April 2023. The bulk of his email addressed the substantive issue of law as to the scope of the FTT’s jurisdiction in respect of public law issues and the power to transfer to the UT under rule 5(3)(k). Turning to the allegations of misconduct, and as set out in Annex A to the Charge Sheet, Mr Stenhouse said this:

“With regard to Mr Fairweather’s contact with Mr O’Shea I reject the President’s rather pathetic attempt at a whitewash. Mr Fairweather’s email to me informing me of his decision to cancel the directions that had previously been given by the FTT contained a great deal of technical information regarding tax and the specific conduct of HMRC in my case. That is not information that Mr Fairweather knew himself. I do not accept for one moment that Mr Fairweather ever carried such detailed information around with him in his head. It is beyond dispute that such information … was given to Mr Fairweather by Mr O'Shea in their private and secret dealings with each other. That information could only have been given to Mr Fairweather either by e-mail or letter, or by telephone conversation. The President has confirmed that his examination of the file reveals that there is no record of the information set out in Mr Fairweather's e-mail he sent to me being given to Mr Fairweather by Mr O'Shea. This means either that no records of the information passing between Mr O'Shea and Mr Fairweather was ever made, or that such records as there were have been removed from the file. It is clear beyond peradventure that Mr O'Shea either asked or instructed (it matters not which it was) Mr Fairweather to cancel the directions of the Tribunal. Mr Fairweather obliged without any prior reference to me. I was simply told that the deal was done and the directions had been cancelled. I am afraid that if the President is going to try and whitewash what has actually occurred and what is actually recorded in e-mail correspondence in the interests of attempting to maintain the integrity and reputation of and public confidence in the Tax Chamber for which he is responsible, he needs to come up with something better by way of explanation and exoneration then just having the file examined ex post facto. The President has a rather perverse understanding of the concept of “transparency”.”

[20]The Annex characterised these passages as Mr Stenhouse making further unfounded and unsubstantiated allegations of misconduct, and accusing the President of covering up or “whitewashing” misconduct, and as being insulting and rude. This email was also the basis of charges 1(a)

(b) .

[21]On 20 April 2023, Mr Fairweather sent a further email to Mr Stenhouse in response. Mr Fairweather said that Judge Sinfield had seen the email of 17 April and had asked for Mr Stenhouse to be told that the judge would deal with the matters raised by way of a decision so that Mr Stenhouse could, if he disagreed with the decision, apply for permission to appeal to the Upper Tribunal. Judge Sinfield would deal with the matter on the papers or, if Mr Stenhouse preferred, following a hearing and, in either case, would give HMRC an opportunity to make representations. The email asked for Mr Stenhouse’s preference as to the matter being dealt with at a hearing or on the papers and, if the former, for a time estimate and availability.

[22]Mr Stenhouse replied briefly the same day saying that he did not understand the email and asking:

“Are you asking me to make representations about a hearing on the issue of judicial review/ transfer to the UT, or are you asking me to make representations about a hearing of my Appeal?”

[23]Mr Fairweather responded on 21 April 2023 with Judge Sinfield’s reply. This included the following:

“As I said previously, I propose to deal with the various matters raised by Mr Stenhouse in correspondence in a decision which will then give him the right to appeal, subject to being given permission, if he disagrees with anything in it. It seems to me that there are two main matters that fall to be decided in order to determine whether Mr Stenhouse can go forward with his appeal and/or claim for damages/judicial review. The first issue is whether the Tax Chamber has any jurisdiction following HMRC’s withdrawal of the penalties, ie is there an appeal at all? That is probably best considered in the context of a decision whether to strike out proceedings under rule 8(2) of the ….. “FTT Tax Rules”

. That leads naturally to the second issue which is Mr Stenhouse’s application for the Tax Chamber to transfer the proceedings to the Upper Tribunal under rule 5(3)(k) of the FTT Tax Rules. It is clearly a nonsense to suggest that I should consider Mr Stenhouse’s penalty appeal before deciding whether there is an appeal and/or whether the proceedings belong in the Tax Chamber or the Upper Tribunal.”

[24]Judge Sinfield went on to say that there might be other issues which had been raised in the correspondence. He listed out 7 issues. The first was the allegation of secret representations made by HMRC which led to the directions of 22 November being set aside. The last was set out by

the judge as follows:

“In his email of 19 April, Mr Stenhouse continues to make allegations of serious misconduct on the part of Mr Fairweather first made in the email of 16 February and makes further allegations against unnamed Tax Chamber staff and me. In response to my statement that, having investigated the matter, there were no “private and secret dealings” between HMRC and the Tax Chamber, Mr Stenhouse accuses me of a “pathetic attempt at a whitewash” and having a “perverse understanding of the concept of transparency”

. Mr Stenhouse also accuses Tax Chamber staff of either suppressing or removing documents from the file for this appeal. Mr Stenhouse has not provided any evidence to support his statements which are defamatory.” The judge said that he did not think it appropriate for him to comment on these two issues which might be best dealt with by a third party such as the JCIO if Mr Stenhouse maintained his accusations.

[25]Mr Stenhouse replied the same day. He said simply:

“The decision to strike out my appeal has already been made. I don’t need to have a live hearing about something that has already been decided. So stop messing me around and get on with it.”

It is worth observing that no decision to strike out had been made and that the President had been offering to hold an oral hearing on that issue if Mr Stenhouse wanted. What Mr Stenhouse was inviting the FTT to “get on with” was wholly unclear.

[26]Mr Fairweather responded later that day. He said that the appeal had not been struck out and, if it had been, asked for details and whether Mr Stenhouse wished to exercise his right to apply for permission to appeal. He then said:

“Judge Sinfield has asked me to say that he will not tolerate rudeness and language that are unbecoming of a member of the Bar, especially when directed to a Court or Tribunal.”

[27]Mr Stenhouse’s response, also on 21 April 2023, asserted:(i) that the email sent on 4 April 2023 told him that the President had decided to strike out the appeal but asked for further submissions;

(ii) that those further submissions were made by email on 17 April; and

(iii) that the President’s response by email on 21 April 2023 told Mr Stenhouse that the President wanted to make a decision which could be appealed if Mr Stenhouse disagreed with it and that “This confirms the decision to strike out my appeal previously confirmed in the email dated 04.04.23 …..” I observe again that this is a patent misreading of the emails from Judge Sinfield/ Mr Fairweather and that the FTT had consistently asked for Mr Stenhouse’s representations on what should happen next (which included whether the appeal should be stuck out) and, indeed, offered an oral hearing to address the issues he was raising.

[28]Mr Stenhouse concluded with:

“There is nothing I have said that is rude. My arguments have not been accepted. I do not need to [be] sent more emails asking me how I want my arguments to be dealt with. I repeat – stop messing me about and get on with formally making the decision.”

I repeat – stop messing me about and get on with formally making the decision.”

[29]Rather more briefly, these exchanges were set out in Annex A with highlighted passages. The passages in bold formed the basis of charge 1(c).

[30]These exchanges having taken place on a Friday, on Monday 24 April 2023, Judge Sinfield replied via Mr Fairweather. He set out clearly why neither the email of 4 April or 21 April could be construed as meaning that a decision had already been made; that he had not made a decision; and that the appeal had not been struck out. The judge asked for confirmation that Mr Stenhouse was content for him to proceed to make a decision on the papers or whether he wished the judge to hold an oral hearing.

Judge Sinfield then said:

“Finally, you say in your email that you have said nothing that is rude. I disagree. You have accused Mr Fairweather of conspiring secretly with HMRC against you and me of a “pathetic attempt at a cover up”

. More recently, you have told the Tribunal to “stop messing around and get on with it.” The unsubstantiated and wholly false accusations and your peremptory language can only be described as “rude”. If you do not withdraw the allegations and make an apology for your tone, I will have no alternative but to report your behaviour to the Bar Standards Board.”

[32]Mr Stenhouse replied on 25 April 2023 saying that he had already made his submissions and did not need to make them again in person at an oral hearing. He said that if HMRC made submissions he was content to reply in writing.

[33]There were then further emails on 27 April 2023. Mr Fairweather’s email was addressed to Mr O’Shea and copied to Mr Stenhouse. In short the email identified the issues that Judge Sinfield considered fell to be decided as set out in the emails dated 21 April 2023 - the first being jurisdictional/ strike out issue and the second being Mr Stenhouse’s application to transfer the proceedings to the Upper Tribunal. The email invited HMRC to make representations and said that Mr Stenhouse would have a right of reply. That led to an email from Mr Stenhouse the same day in these terms:

“The issues to be addressed also include the issues raised in relation to Mr Fairweather and Mr O’Shea. It has been confirmed that Mr Fairweather is an authorise (sic) officer of the Tribunal and exercised a judicial function and power pursuant to that authorisation. Therefore the issue raised concerning Mr Fairweather and his contact with Mr O’Shea are properly matters for the Tribunal to deal with and should be dealt with by the Tribunal as part and parcel of all of the issues raised on my appeal to the Tribunal.”

As set out in Annex A, it was clear from those exchanges that Mr Stenhouse did not withdraw his allegations or apologise. The hard and soft copies of the charge sheet are incomplete but it is clear that it is this email that formed the basis of charge 1(d).

[34]To complete the picture, Mr Stenhouse’s appeal was struck out on 24 July 2023 by Judge Sinfield on the grounds of lack of jurisdiction. Mr Stenhouse applied for and was refused permission to appeal. He then applied to the Upper Tribunal for permission and was again refused.

[35]As Judge Sinfield had said, the matter was referred by him to the Bar Standards Board. Judge Sinfield completed the standard BSB “Reporting form report” and gave the following details of his report:

“In the course of correspondence in relation to an appeal to the First-tier Tribunal (Tax Chamber) (“the FTT”), Mr. John Stenhouse made allegations that a member of the FTT's staff, Mr Fairweather, and an Officer of HM Revenue and Customs brackets (“HMRC”), Mr O'Shea secretly conspired together to bring Mr Stenhouse’s appeal to an end. The allegation that Mr O'Shea and Mr Fairweather conspired together to derail Mr Stenhouse’s appeal would, if true, amount to the criminal offence of misconduct in public office. Mr Stenhouse was also rude to the Chamber President and accused him of a cover up of the alleged misconduct.”

[36]The BSB disciplinary process is a 3 stage process. At the first stage, the BSB considers the complaint and whether it raises any potential breach of the Code of Conduct. If it does, the BSB formulates its proposed Allegations of Breach. At the second stage, those Allegations are referred to the Independent Decision-making Board (“the IDB”) for a decision as to whether there is a prima facie case to be met and whether, therefore, to authorise the Allegations as formal charges to be referred to a Disciplinary Tribunal. The third stage is the issue of the formal charges and the proceedings before the Disciplinary Tribunal.

The charges

[37]Because of some of the arguments raised on appeal by Mr Stenhouse, it is necessary to set out the charges fully:

“Charge 1 Professional misconduct, contrary to Core Duty 5 and/or rC8 (integrity only) of the Bar Standards Handbook The Particulars of Offence “John Stenhouse, a barrister and regulated individual, behaved in a way which was likely to diminish the trust and confidence which the public places in him or in the profession and acted in a way which could reasonably be seen by the public to undermine his integrity, in that between 15 February 2023 and 23 May 2023, Mr Stenhouse sent to the First-tier Tribunal (“FTT”) (Tax Chamber) office email correspondence and a reply to submission of His Majesty’s Revenue and Customs (“HMRC”) set out in Schedule A in which he: (a) Made unfounded and serious allegations of misconduct in public office against a member of the FTT’s staff (Person A) and an officer of HMRC (Person B) namely that they had secretly conspired to wrongfully bring about the end of his (Mr Stenhouse’s) FTT appeal; (b) Made an unfounded and serious allegation of misconduct in public office against the President of the FTT (Tax Chambers), namely that he had covered up the alleged misconduct of Person A and/or Person B; (c) Made comments which, taken individually or cumulatively, were unacceptable, insulting or rude in tone and/or content; and/or (d) Refused to withdraw the allegations of misconduct or apologies for his insulting or rude language, when invited to do so by the President of the First-tier Tribunal.”

The Particulars of Offence (a) Made unfounded and serious allegations of misconduct in public office against a member of the FTT’s staff (Person A) and an officer of HMRC (Person B) namely that they had secretly conspired to wrongfully bring about the end of his (Mr Stenhouse’s) FTT appeal; (b) Made an unfounded and serious allegation of misconduct in public office against the President of the FTT (Tax Chambers), namely that he had covered up the alleged misconduct of Person A and/or Person B; (c) Made comments which, taken individually or cumulatively, were unacceptable, insulting or rude in tone and/or content; and/or (d) Refused to withdraw the allegations of misconduct or apologies for his insulting or rude language, when invited to do so by the President of the First-tier Tribunal.”

The Particulars of Offence

[38]Core Duty5 is that:

“You must not behave in such a way which is likely to diminish the trust and confidence which the public places in you or in the profession.” rC8 provides that: “You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4)”

The decision

[39]The DT found charges 1(a) and (b) to be proved in terms of a breach of CD5 only and dismissed the charge of breach of rC8 (integrity).

[40]DT did not uphold charges 1(c) and 1(d). On charge 1(c), the DT found that the “stop messing about” type expressions were most unfortunate but fell short of a breach of any Core Duty. In relation to charge 1(d) and the email of 24 April 2023, the DT found that the opportunity offered by Judge Sinfield to Mr Stenhouse to withdraw his allegations and apologise ought to have been taken but (at paragraph 80 of the decision):

“… the Tribunal unanimously concluded that Mr Stenhouse was aggrieved at the conduct of his appeal and believed, however misconceived such a position was, that he had nothing to apologise for. Accordingly the Tribunal unanimously found this Charge was not proved.”

The appeal

[41]Section 24(2) of the Crime and Courts Act 2013 provides for a right of appeal to be conferred on the High Court in respect of a matter relating to the regulation of barristers and, under subsection (6), the High Court may make such an order as it thinks fit on an appeal. The appeal is made pursuant to the rights of appeal provided for in regulations rE236-238 of the BSB’s Disciplinary Tribunal Regulations which provide that the appeal may be lodged in accordance with the CPR. CPR Part 52 then applies to the appeal. The court will allow the appeal where the decision of the lower court, or in this case the disciplinary tribunal, was wrong or unjust because of a serious procedural or other irregularity.

[42]The relevant authorities and principles were fully reviewed by Calver J in Owusu-Yianoma v BSB

[2023] EWHC 2785 (Admin)

at [16]-[28] and I have regard to them. The appeal is a review not a re-hearing and appropriate respect will be given to the decision of the tribunal which had heard all the evidence and submissions.

[43]So far as sanction is concerned, the appeal court will also give due respect to the decision below and interfere only where there was an error of principle in the evaluation or the evaluation was wrong in the sense that it fell outside what could properly and reasonably be decided.

The Grounds of Appeal

[44]Mr Stenhouse advances 12 grounds of appeal. In support of his appeal, he made extensive citation of authority and his bundle of authorities ran to nearly 60 cases plus other documents. In this judgment I confine myself to reference to the cases that seem to me of significant relevance and that is not to be taken as failure to have regard to the many other cases referenced.

Ground 1 (“Recusal application”)

[45]In its Report, the DT recorded that it heard oral evidence from Mr Fairweather, Judge Sinfield and Mr Stenhouse from 27 to 29 November 2024. Before the hearing later resumed, Mr Stenhouse had raised an issue of apparent bias and both parties had made written submissions. When theproceedings then resumed on 8 May 2025, Mr Stenhouse made an application for the Chair, Geoffrey Williams KC, to recuse himself. At paragraph 33 of the Decision, the Tribunal said that the application was based on certain questions put to Mr Stenhouse by the Chair after he had given evidence and been cross-examined. Mr Stenhouse’s submission, as summarised by the DT, was that the questioning showed that the Chair had a closed mind, was favouring the case for the BSB and that the questions amounted to “messaging” to the BSB to guide its conduct of the proceedings. That submission was rejected. The DT concluded that there was no suggestion of messaging or perceived bias and that the questions were proper and appropriate.

[46]Mr Stenhouse’s first ground of appeal is, in essence, that that decision was wrong and, more specifically that the DT failed to engage in any meaningful way with his application or to analyse the law, facts, evidence and arguments on the application, and failed to give any reasons or explanation for the dismissal of the application. He argues, therefore, that the Chair ought to have recused himself and, as I understood it, that a decision then reached with the participation of the Chair was not a proper decision. Mr Stenhouse was unclear as to what the consequences of such a recusal should have been had his application been accepted.

[47]As an alternative position, he submits that, even if the Chair’s questions do not support a case of apparent bias, they establish that the DT was influenced by and took into account considerations that were outside the specific charges and irrelevant.

[48]The well-established test for apparent bias is that set out in Porter v Magill

[2001] UKHL 67

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or real danger, the two being the same, that the tribunal was biassed.”

[49]Central to Mr Stenhouse’s argument on recusal are the questions that had been asked by the Chair and were set out in full in Mr Stenhouse’s note dated 8 May 2025 for the recusal application (with transcript references) and identified as (A) to (G).

[50]The first questions ((A)) were from the Chair to Mr Davidson who appeared on behalf of the BSB and were put on the first day of hearing. In summary, the Chair asked whether the BSB put its case on the basis that the DT should construe the emails by reference to the ordinary and plain meaning of the words or whether they invited the DT to go further and make findings as to what Mr Stenhouse meant. Mr Davidson’s response was that the BSB’s case was “what did the words mean and what could a fair-minded observer deduce from those words as to Mr Stenhouse’s integrity and as to the confidence they should place in him”. As I understand it, Mr Stenhouse has no complaint about these questions but relies on them as the Chair establishing at the outset how the charges should properly be approached, that is with regard to the objective meaning of the words used. He submits that the Chair then nonetheless adopted a subjective approach.

[51]The remaining questions were all ones put to Mr Stenhouse in the course of his evidence on Day 3 of the hearing.

[52]In relation to the questions under (B), Mr Stenhouse was asked by one of the lay members about correspondence with HMRC which was not the subject of the charges. That led the Chair to ask about the suggestion in Mr Stenhouse’s skeleton argument that lack of repetition was relevant to the decision on the charges. The Chair commented that he was not going to agree with that submission or otherwise but went on to ask Mr Stenhouse whether he agreed that his conduct had been repeated after the charge period and “ramped up”. Mr Stenhouse responded that the comments (in his correspondence with HMRC) were, he thought, before the charge period. In relation to (C), the Chair asked whether Mr Stenhouse would agree that the correspondence that had been referred to (and was not the subject of the charges) could lead to the conclusion that the subject of the charges was repetition of such behaviour. Mr Stenhouse did not agree.

[53]These questions did no more than probe how Mr Stenhouse put his case. Some of this questioning is a little difficult to follow but the questions appeared to be understood at the time and were duly responded to.

[54]The remaining passages relied upon covered a few pages only of the transcript from page 77C to 80A.(i) In the passages at (D), the Chair asked a series of questions starting with whether Mr Stenhouse accepted that “the allegation you made of a whitewash on the part of Judge Sinfield is also a serious allegation of judicial misbehaviour”. Mr Stenhouse responded that it was a serious allegation of things not done properly but not of misbehaviour. That response led the Chair to put that a “whitewash” involved intent and a deliberate attempt to deflect blame. Mr Stenhouse agreed. The Chair asked, in effect, whether Mr Stenhouse agreed that accusing someone of being pathetic was offensive. He responded that he had used “pathetic” to refer to what the judge had done and that it was not a comment on the judge personally.

(ii) In the passages at (E), the Chair asked Mr Stenhouse whether he had any respect for Judge Sinfield. In summary, Mr Stenhouse’s response was that he had respect for the judge’s judicial abilities and had never knowingly disrespected him.

(iii) In the passages at (F), the Chair asked whether, in using words, Mr Stenhouse took account of the effect the words might have on others. Mr Stenhouse said he was alive to the fact that what he was complaining about could have serious implications for people.

(iv) In the passages at (G), the Chair asked whether Mr Stenhouse agreed that it was important to be sure of the evidential basis before making complaints. Mr Stenhouse accepted that he had to have some evidence to do so. The Chair concluded “… we will be addressed on that.”

[55]Mr Stenhouse submitted that the court should look at the totality of these questions and take into account the repetition of questions, some of which were not relevant to the charges. He made two key points. Firstly, he submitted that some of the questions – for example the question about respect for Judge Sinfield – indicated that the Chair was applying the wrong legal test and was concerned with Mr Stenhouse’s subjective intention rather than the objective meaning of the words used. Secondly, he submitted that both the nature of the questions and their repetition indicated that the Chair was dissatisfied with reasonable answers given by Mr Stenhouse and, by his questioning and repetition of questioning, he indicated his dissatisfaction and was trying to influence the lay members of the tribunal against Mr Stenhouse. In relation to both of these points, Mr Stenhouse argued that a fair-minded observer would ask why the Chair was asking these questions; the only answer could be because the Chair considered them relevant when, in fact, they were not; and the only conclusion could then be that they demonstrated apparent bias.

[56]Taking the arguments on ground 1 up to that point, there is, in my judgment, nothing in them. Taking these questions at face value, there is nothing that could lead the fair-minded and informed observer to conclude that there was a real possibility of bias. It seems to me that in this context, that is disciplinary proceedings in respect of a barrister, that informed observer should reasonably be taken to have the characteristics of a barrister and not a lay person. A barrister will know that a tribunal, whether a judge or otherwise, will probe a party’s case and evidence and may ask questions or put propositions which do not reflect the tribunal’s views but are seeking to understand a party’s position. Questions of this nature may also have the effect of alerting the other party to a line of argument that they might advance but that it not “messaging” or indicative of bias.

[57]In fairness to Mr Stenhouse’s argument, I accept that some of the questions posed by the Chair are arguably about what Mr Stenhouse subjectively thought or intended. But that is not sufficient to establish either that the DT took a wrong approach in law by applying a subjective test in making its decision or, which is material to this ground, were indicative of bias because the questions were irrelevant. That is all the more the case where, as here, the witness was also representing himself. The questions at (B), (C) and (D) in particular could as well have been asked of a legal representative in terms of how the case was put. It is impossible to see how a fair-minded observer could reach the conclusion of apparent bias for which Mr Stenhouse contends.

[58]As set out above, these passages were central to Mr Stenhouse’s case but he went further and contended that the decision of the DT confirmed the appearance of bias:(i) He relied on what he contended was the effective amendment of the charges under charge 1(a). This also forms ground 2 and is dealt with below.

(ii) He relied on what he characterised as “egregious failings” of the DT in making its decision.

[59]The “egregious failings” were said to include (using the sub-paragraphs in Mr Stenhouse’s skeleton argument):(i) Sub-paragraph (a): Dismissing or ignoring Mr Stenhouse’ evidence out of hand.

(ii) Sub-paragraph (b): Accepting wholesale the evidence of Mr Fairweather and Judge Sinfield without analysis or consideration of their cross-examination.

(iii) Sub-paragraph (c): Failure by the DT to ask itself whether Mr Stenhouse had a reasonable explanation or justification for his statements and complaints.

(iv) Sub-paragraph (d): Failure by the DT to ask itself whether Mr Stenhouse’s statements and complaints merely reflected a lack of judgment and not a breach of CD5 which would amount to professional misconduct.

(v) Sub-paragraph (e): Failure to apply the reasonable observer test in its analysis of the evidence and arguments.

(vi) Sub-paragraph (f): Deliberately ignoring the BSB’s clear statement that the case was founded on a reasonable observer test and not a subjective test.

(vii) Sub-paragraph (g): Failure to stand back and review the BSB’s case as whole.

(viii) Sub-paragraph (h): “Improper, blatant and frankly outrageous refusal of the Tribunal to pay any attention to the significant and relevant differences in the meaning of the words “whitewash” and “cover up” and the relevant factual context in which [Mr Stenhouse] “spoke” and instead simply “cutting and pasting” specific limited words from one single email and using those words as a justification for finding breach of CD5 proved.”

(ix) Sub-paragraph(i): Making decisions which had within them inherent and irreconcilable contradictions.

[60]Each of these alleged failings is in reality a matter with which Mr Stenhouse takes issue in the decision of the DT and not evidence of apparent bias. Some of them are repeated as free-standing grounds of appeal. In any event, I address them briefly below.

[61]Sub-paragraphs (a) and (c): The suggestion that the tribunal dismissed or ignored Mr Stenhouse’s evidence out of hand is unsustainable. There is an inherent problem with this submission which stems from the fact that the DT was concerned with what had been said in emails and the objective meaning of what had been said. Mr Stenhouse’s witness statement dated 12 August 2024, in my view, largely consisted of submissions and commentary on the emails including how he had understood emails and what he said he had meant in his emails. Mr Stenhouse’s evidence, therefore, added little if anything and it is his own case that it would have been wrong for the DT to be concerned with what he subjectively meant or intended.

[62]What Mr Stenhouse appears to complain about is that in its decision the DT made no reference to his case that he had a reasonable explanation for what he had said. That does not make sense and/or add anything. He did not have distinct evidence, for example, that there had been some secret proceedings between Mr Fairweather and HMRC and his case remained founded on what was said in emails. His explanation for what he had said was, therefore, similarly founded in the written words which the decision addressed. He relied heavily on the email that had not been copied to him as evidencing secret representations, ignoring the content which added nothing to the letter that had been sent to him and copied to the FTT. In any case, it is clear from the very matters that Mr Stenhouse relied on in support of the recusal application that the DT had listened to his evidence and gave him an opportunity to answer questions about it.

[63]Sub-paragraph (b): The witness statement of Judge Sinfield dated 22 April 2024 largely recited the email correspondence. He made some comments to the effect that he considered Mr Stenhouse’s emails rude and offensive. He said that, following the email of 16 February 2023, he had asked Mr Fairweather for his version of events and for the file to be checked. He also gave some brief evidence about Mr Fairweather’s role and the extent of his knowledge about matters relating to the FTT. There was little, if anything, that needed to be or could be challenged in this evidence. Judge Sinfield was cross-examined by Mr Stenhouse. I have reviewed the transcript of this cross-examination, including passages Mr Stenhouse identified in his oral submissions, and can see nothing that would lead to the conclusion that the DT was obviously wrong and biased in not taking account of such evidence. It was entirely open to the DT to find that there was nothing in this questioning that undermined his evidence. That does not show bias. Similarly, Mr Fairweather’s witness statement dated 19 April 2024 set out the emails with some comments on how he regarded the emails. I have reviewed the transcript of the cross-examination of Mr Fairweather and drawn the same conclusion.

[64]Sub-paragraph (d): In relation to sub paragraph (d), Mr Stenhouse prayed in aid the approach taken by the tribunal in disciplinary proceedings against Stephen Kamlish QC. Mr Kamlish had faced 3 charges of professional misconduct contrary to CD1, 3, 5 and rC7.3 that, without reasonable grounds, he had made 4 specific allegations of bad faith against members of successive prosecuting teams. None of these charges was upheld.

[65]The decision of the tribunal in that case is not capable of founding any kind of precedent. On the facts of the case (which were lengthy and complex), the tribunal concluded that the respondent genuinely believed that he had reasonable grounds for the allegations he made, although he was wrong about that. They considered that to amount to a misjudgement as to the reasonableness of the grounds and, on the facts of the case, that was not sufficiently serious as to amount to misconduct.

[66]This decision is of no assistance to Mr Stenhouse. Even if it could do so, it does not establish some general principle that for professional misconduct there is a defence of “misjudgement”. In the present case there was, in any event, no misjudgement but the making of serious allegations without foundation and/or derived from a misreading of straightforward words.

[67]Sub-paragraphs (e) and (f): This is a repetition of the complaint of application of the wrong test in law. There was no error of law in this respect in the decision and no basis for a perception of bias in the application of the wrong test.

[68]Sub-paragraph (g): This is broad complaint which has no articulated basis as a free-standing ground of appeal and offers no basis for any perception of bias.

[69]Sub-paragraph (h): This is a further variation on a theme of ground 3 which I deal with below. It is no basis for any perception of bias.

[70]Sub-paragraph (i) is simply criticism of the decision and adds nothing.

[71]For the BSB, Mr Davidson drew the court’s attention to the decision in Nguyen v HM Coroner for Inner West London

[2021] EWHC 3354 (Admin)

as an illustration of the high threshold for judicial intervention to amount to apparent bias but the present case is not one in which any reliance needs to be placed on a high threshold.

[72]Mr Stenhouse also complains thatthe DT’s decision on the recusal application is hopeless, that the application is dealt with superficially and that no reasons are given. That submission is without merit. I have summarised above the reasons for the DT’s dismissal of the application. These reasons were brief but adequate. I have addressed Mr Stenhouse’s submissions in greater detail but the end result is the same and for the same reasons.

[73]A number of the grounds of appeal which I will come to below make further allegations of unfairness in the proceedings couched in a variety of terms. Mr Davidson made the point that the DT upheld two charges (but only in part) and dismissed two charges. It is something of a jury point but fair to say that this is not indicative on its face of a biased tribunal.

Ground 2 (“Allegation of Conspiracy - Charge 1(A)”)

(A) ”)

[74]Despite the extensive submissions Mr Stenhouse made on this ground both in writing and orally, it can be set out quite shortly. As set out above, charge 1(a) was that Mr Stenhouse had made serious and unfounded allegations of misconduct in public office against Mr Fairweather and Mr O’Shea “namely that they had secretly conspired to wrongfully bring about the end of his … FTT appeal”. The particularisation of the charge as an allegation of conspiracy was repeated both by counsel for the BSB and the DT.

[75]Mr Stenhouse emphasised that, for the charge to be upheld, the evidence must support the focussed charges and that the DT was confined to the charges actually made against him.

[76]Mr Stenhouse referred the court to R v GMC ex parte Roomi

[2009] EWHC 2188 (Admin)

at [14]-[18] emphasising that the Panel was, in that case, confined to considering the allegation in the relevant notice. In Chauhan v GMC

[2010] EWHC 2093 (Admin)

at [6], the court similarly accepted that the Panel was confined to the charges “as formulated and particularised” in the relevant notice. Similar observations were made by Jackson LJ in Thaker v Solicitors Regulation Authority

[2011] EWHC 660 (Admin)

at [32]-[36, [42]-[47] and [54] – [60]. The facts of this last case were somewhat tortuous and the court was highly critical of the manner in which the SRA had particularised the charges which had already been the subject of a judicial review which was compromised. The nature of the case against the solicitor was one of misconduct in permitting payments to pass into and out of his client account when the payments were suspicious and there was no underlying transaction. As a result of the compromised judicial review, the charges identified ten particular payments and two instances of alleged dishonesty. The court found that the Tribunal’s decision made findings of fact on matters that went beyond the twelve transactions referred to in the charges and upheld the appeal on the ground of “Allowing Submissions and Evidence to Range Beyond the Twelve Relevant Transactions.” The court was also critical of the Tribunal’s failure to identify any aspect of the transactions that ought to have aroused the solicitor’s suspicions and found the conduct of the hearing overall to be unfair, not least because the evidence had been allowed to range far and wide.

[77]Mr Davidson relied on the decision in Diggins v BSB

[2020] EWHC 467 (Admin)

. In that case, the charge related to a tweet made by the barrister and the charge used the words of the tweet in issue without any addition. Before the tribunal, the BSB's case was that the ordinary reasonable reader would read the tweet as “a personal attack upon an individual, using gender and perceived racial-characteristics-based language to convey what is a race and gender-based insult” and, read in that way, it was likely to diminish the trust and confidence placed in the barrister and in the profession. The tribunal was satisfied, to the criminal standard then applicable, that the tweet was seriously offensive, racially charged and derogatory towards women.

[78]At [93], Warby J said this:

“The wording used by the Panel in its reasons was not identical to the language used by the BSB in presenting the charge, but I do not accept that this is a flaw. The charge was clear enough, and the appellant had and took advantage of a full and fair opportunity to present his case as to why the capital Tweet should not be considered a breach of the Code as alleged. The Panel's reasons for finding the Tweet to be “seriously offensive” do not differ fundamentally from those advanced by the BSB. Nor am I persuaded by the appellant’s criticisms of the Panel's reasoning. He focuses on the terms “racially charged” and “derogatory to women” in paragraph 35, arguing that both are impermissibly over-broad, vague and undefined .... In my judgement, such arguments are over-subtle, and fall into the trap of over-elaboration against which the Supreme Court warned in Stocker [Stocker v Stocker [2019] UKSC 17 concerned with interpretation of tweets]. The substance of the panel's reasoning is clear enough, and I do not consider that its conclusions are open to challenge as irrational or otherwise illegitimate.”

[79]On the BSB’s case, it was open to the DT to find the charges made out exactly as particularised but, relying on Diggins and in the alternative, that the essence of the charges was making unfounded and serious allegations and that the precise dissection of the words used in the particulars was not the issue.

[80]Mr Stenhouse also drew the court’s attention to the case of Hindle v Nursing and Midwifery Council

[2025] EWHC 373 (Admin)

, a decision of Alan Bates sitting as a Deputy High Court Judge. In that case, the judge found that in a number of respects the Panel had taken an approach to evidence which was legally unsustainable. One such approach was the Panel’s reliance on its assessment of the appellant’s relationship with another (in that case a student) and sense of frustration in dealings with them as justifying a conclusion that the appellant had behaved inappropriately. The judge gave two examples of the Panel’s applying this approach one of which concerned an alleged altercation and use of rude language and the other alleged shouting at a student. In the latter example, despite the appellant’s denial of shouting, the Panel decided it was more likely than not that she did shout at the student because of her frustration which had been evident when she gave evidence. At [97] the judge described this approach as little more than speculation as to how the appellant’s feelings might have led her to act:

“…. It failed to keep in mind the proper starting point, namely that the burden was on the NMC to present cogent evidence sufficing to satisfy the Panel that the alleged conduct had occurred. The fact that the standard of proof is the “balance of probabilities” standard does not mean that a tribunal can properly find an allegation proved based on its own speculative guess as to what more probably happened ….. Rather it will be the duty of the tribunal to find an allegation “not proved unless the party making the allegation has produced cogent evidence sufficing to satisfy the tribunal, on the balance of probabilities and after having considered the totality of the evidence before it, that the alleged conduct occurred, 98. ….. It would be monstrous for findings to be made based on preferring certain witnesses’ accounts by reason of a mere “educated guess” by the tribunal as to what it thinks probably happened. Rather, findings should only be made based on a careful evaluation of the prosecution evidence, as a result of which the tribunal is satisfied that the evidence can properly be relied upon for finding the allegation proved.”

[81]Mr Stenhouse’s case is that the only evidence relied upon by the DT is his email on 16 February 2023 in which the word “conspiracy” does not appear. In essence, Mr Stenhouse then submits that the evidence relied on cannot support a charge that he had alleged a conspiracy. Nothing that he had written alleged a conspiracy or compact or secret agreement as he put it. What he submits he had, in fact, said was that Mr Fairweather had allowed HMRC to control the proceedings and that was an allegation directed solely at Mr Fairweather and, therefore, could not be an allegation of conspiracy. To the extent, therefore, that this charge was found to made out, the DT had gone outside the remit of the charges brought.

[82]Further, Mr Stenhouse submitted that the DT had, in fact, made no finding of his having made an allegation of conspiracy. The DT’s conclusion (at paragraph 58), having construed the email against the background of the preceding events, was that there was “no basis for the assertions that” Mr Fairweather had done what he was asked to do by Mr O’Shea/HMRC, that that amounted to permitting Mr O’Shea/HMRC to control the proceedings, and that what had happened was a secret proceeding leading to the directions order being set aside. The DT quoted the relevant passages of the email. Mr Stenhouse submitted that those passages did not constitute an allegation of conspiracy and the DT did not therefore find the charge made out. Rather, he argued, the DT found that he had made baseless assertions which was not what he was charged with.

[83]It followed, on his case, that the DT had found him guilty of breach of CD5 on a basis that he was not charged and which the DT was not appointed to decide. The IDB had authorised a charge of alleging a conspiracy and a cover up and had not authorised a revised charge of “making false allegations”.The DT had thereforeproceeded on a basis that was unauthorised, fundamentally flawed and outside its jurisdiction.

[84]Further Mr Stenhouse submitted that:(i) the words used by him were, in any event, factually accurate and not objectively rude or insulting; and

(ii) the words used were not sufficient for a finding of professional misconduct. Mr Stenhouse drew a comparison between his case and that of Dr Charlotte Proudman (BSB v Proudman (March 2025)) in which the Tribunal found that tweets made by Dr Proudman concerning a High Court judgment could not amount to misconduct. Mr Stenhouse submitted, that what had been tweeted in that case was far more serious and to find him guilty of misconduct was wholly inconsistent.

[85]The authorities that Mr Stenhouse relies upon state a clear and obvious principle that the tribunal is confined to the charges made and can only reach a decision on the basis of cogent evidence and not speculation. Beyond those statements of principle, they have little in common with the present case. In these cases, the tribunal variously heard evidence and made findings on matters that might have been the subject of charges but were not. In Hindle in particular the point was made that it was not open to a tribunal to rely on its guess as to what was most likely to have happened based on the feelings and likely conduct or reaction of the defendant but that was in the context of contested evidence as to whether or not someone had said something or done so in a particular way. In the present case, the evidence was all in writing and spoke for itself and the issue was whether that amounted to evidence sufficient to find the charges made out.

[86]By a decision dated 24 January 2024, the IDB authorised charges of alleging a conspiracy and cover up. The IDB considered four potential allegations and decided to refer two of them to a 3-man disciplinary tribunal. These were the allegations that formed the basis of the charges and, in the case of charges 1(a) and (b) were formulated in the same terms. The IDB’s reasons set out fully the evidence they had relied upon. At various points they referred to an allegation that Mr Fairweather had received and acted on instruction from HMRC; an allegation of undisclosed contact; and an allegation of a whitewash, ie “a deliberate attempt to stifle or obfuscate the truth of the matter”. From such references, it is clear that the formulations using the words “conspiracy” and “cover up” were intended to represent those allegations. Even without consideration of the IDB’s reasons, it is self-evident, since the words “conspiracy” and “cover up” did not appear in Mr Stenhouse’s emails, that the charges were authorised on the basis that that was what was to be inferred as the allegation being made in the email of 16 February and/or other emails.

[87]Indeed,the DT (at paragraph 62 of its decision and in relation to charge 1(a)) observed:

“Whilst it would certainly have been preferable for the Charge and Annex to cite verbatim what Mr Stenhouse had said the Tribunal found that what was alleged reflected what Mr Stenhouse had said and the Tribunal was not persuaded that the Charge should fail on such a basis.”

[88]It is quite also clear from that that what the DT was saying was that, although the words of the charge did not reflect the express words used by Mr Stenhouse, the charge did, in fact, reflect what he had said and that his baseless assertions amounted to an allegation of conspiracy. For the reasons I give below, I accept Mr Davidson’s primary submission that it was open to the DT to find the charges made out as particularised and I reject Mr Stenhouse’s arguments both that there was any change in the case against him and that the DT failed to explain the exercise of interpretation it had undertaken. Taking the email of 16 February 2023 as a whole, the central allegation was that there had been “a secret proceeding” as a result of which Mr Fairweather had done whatever HMRC asked him to do (which was factually wrong). That was an allegation, as I put it above, of collusion or, as Mr Davidson put it, of HMRC and the FTT being in cahoots, or, as the charge put it, conspiracy because an agreement to do whatever HMRC asked was implied. However much the language is deconstructed, it amounts to the same thing.

[89]I do not accept Mr Stenhouse’s characterisation of his email as making an allegation solely against Mr Fairweather and solely that Mr Fairweather had allowed HMRC to control the proceedings or that he had been given an instruction which he followed. That is inconsistent with the allegation of a “secret proceeding” which necessarily implies something happening involving both the FTT and HMRC and, in this case, HMRC asking the FTT to do something and the FTT by Mr Fairweather agreeing to do so. The DT did not need to spell out each step of its reasoning when the implication of the words used by Mr Stenhouse was as obvious as it was.

[90]In any event, Mr Stenhouse went further. In his emails of 17 April 2023 he alleged that it was beyond dispute that information had been given by Mr O’Shea to Mr Fairweather in their “private and secret dealings with each other” and that he had been told that “the deal was done”. Nothing in this was an allegation about Mr Fairweather’s unilateral conduct.

[91]Even if I were wrong about all of that, it is apparent that the DT took an approach which was entirely consistent with that in Diggins. The charge was primarily one of making serious and unfounded allegations of misconduct in public office against Mr Fairweather and Mr O’Shea and there is no question that the words Mr Stenhouse used did so. The words were not factually accurate because there had been no secret proceeding and Mr Fairweather had not simply done whatever HMRC asked him to do and no deal was done. Nor were the words “not objectively rude and insulting”. Two officials were accused of participating in a secret (and therefore wholly improper) proceeding in which one had asked the other to do something that ought not to be done and the other had agreed to do so when he should not have done. That was a serious allegation of misconduct, and one that had no basis either in the correspondence that Mr Stenhouse had seen or not seen, and it is impossible to see how that was not rude or insulting.

[92]Mr Stenhouse further made the broad point that the DT had failed to ask itself whether there was a reasonable explanation for what he had said and, in particular, whether that evidenced a lack of judgement in his understanding of the position or his reaction to it. That submission was simply repetitive of his submissions on other grounds.

[93]The comparison that Mr Stenhouse draws with Dr Proudman’s case does not assist him. Firstly, as Mr Davidson submitted, decisions of disciplinary tribunals do not have any status as precedent. That submission is right but I have some sympathy with Mr Stenhouse’s argument that it would be unsatisfactory if disciplinary tribunals dealing with members of the same profession came to significantly inconsistent conclusions leaving the profession in serious doubt as to what was and was not, so to speak, the right side of the line. Having said that, all cases turn on their own facts, and there are very material differences between Dr Proudman’s well-known case and that of Mr Stenhouse.

[94]I do not intend to set out the nature of Dr Proudman’s case in any detail but, in summary, the charges against her were variously of breach of CD3 and CD5. They stemmed from a judgment in a family case in the High Court in which Dr Proudman had represented the wife. She then tweeted a 14-part thread. In the first two tweets, she said that she did not accept the judge’s reasoning and that she would “dissect the judgment” (providing a link to the judgment). She said that “This judgment has echoes of the “boys club” which still exists among men in powerful positions”. The tweets that followed made observations on particular aspects of the judgment. On a couple of occasions those were framed in terms of what “the judge” had done in the judgment. As the Disciplinary Tribunal found there were a couple of minor immaterial factual inaccuracies.

[95]The charges that followed were particularised in terms that the tweets individually or cumulatively “contained seriously offensive derogatory language which was designed to demean and/or insult the judge”. In the context of these changes the Disciplinary Tribunal had regard to Dr Proudman’s Article 10 rights and relied on and quoted from the decision in Morice v France

[2016] 62 EHRR 1

[96]The Tribunal then concluded:

“These tweets are almost all statements of opinion, save where we have already mentioned an issue of fact that was incorrectly put forward by Dr Proudman; and all of them are concerning a matter of public interest [namely the issue of domestic violence]. Are they unfounded and gravely damaging to the judiciary? Our answer is no. They were robustly expressed opinions on an important matter of public interest. They were moreover opinions which a rational and conscientious lawyer was entitled to express without losing the protection that Morice illustrates is provided by Article 10. We do not condone them; that is not our function. Our function is to determine whether it has been established by the BSB to the civil standard that Dr Proudman has lost her Article 10 protection because what she tweeted was so factually unfounded and so gravely damaging to the judiciary as to amount to professional misconduct. We do not consider that it came close to that.”

[97]The principal respect in which Dr Proudman’s case might be considered “more serious” than Mr Stenhouse’s is that the comments she made were in the public arena whereas Mr Stenhouse’s were made to the individuals he was accusing of misconduct. Beyond that the contrast between Dr Proudman’s case and Mr Stenhouse’s is stark. Dr Proudman expressed views about the content of a judgment and the judge’s reasoning. They included comments on societal assumptions about women and domestic violence – the matter of public interest to which the Disciplinary Tribunal referred – and how those were reflected in the judgment and the impact the judgment might have. As the Disciplinary Tribunal found, these were robust and rational opinions. In contrast, what Mr Stenhouse said was not an expression of opinion. He made allegations of serious misconduct as a matter of fact. The allegations were completely unfounded and did not even properly reflect what had been said in the email correspondence. They were not about the substance of a decision taken in the exercise of a judicial or official function but personal accusations of misconduct levelled against Mr Fairweather and Judge Sinfield.

[98]In his skeleton argument, Mr Stenhouse, however, characterised his comments as being part of his legal submissions on why the new directions should be set aside. Had Mr Stenhouse, for example, simply advanced an argument that he ought to have had a further opportunity to make representations before the directions of 22 November 2022 were set aside (and not merely to make submissions afterwards), such that the new directions were unfair and should be set aside, he could properly have made that case without more. But he leapt to a conclusion that HMRC had made secret representations and that the directions had been set aside on that basis and made allegations of improper conduct which were about personal conduct and not the decision-making process. I observe that elsewhere in his submissions on this appeal, Mr Stenhouse referred to “wrongdoing” by Mr Fairweather. That gives the lie to his argument that he was advancing legal argument and not making accusations about Mr Fairweather’s personal conduct.

[99]It follows that, in my judgment, there was no error in the DT’s decision that is capable of founding an appeal.

[100]Although slightly differently expressed, the crux of Mr Stenhouse’s argument on this ground is that the Tribunal “re-wrote” the charges either to formulate the particulars as making baseless allegations and/or ones which relied on what could be inferred from the words used by him rather than the express words. Mr Stenhouse sensibly took this ground with ground 2 as the same issues arose and this ground fails for the same reasons.

Ground 3 (“Allegation of “Cover Up” and “Whitewash” – Charge 1(B)”)

(B) ”)

[101]This ground relates to charge 1(b) which concerns an unfounded and serious allegation of misconduct by the President of the FTT “namely that he covered up the alleged misconduct of Mr Fairweather and Mr O’Shea”.

[102]Mr Stenhouse argues that his use of the word “whitewash” was, in context, a forthright criticism of the President’s investigation alongside the President’s refusal to accept or countenance any wrongdoing by Mr Fairweather. He did not use the words “cover up” which, in fact, came from the President’s emails, as Mr Stenhouse puts it, conflating the expressions “out of blue” some weeks after the “whitewash” email was sent. He submits that equating these expressions was wholly wrong.

[103]In his oral submissions in respect of ground 1, Mr Stenhouse focussed on the distinction between “whitewash” and “cover up” and argued that to regard any difference as an irrelevant technicality was extraordinary.

[104]Firstly he argued that the term “whitewash” had been used by him in a particular factual context. In summary, Mr Stenhouse said that, following Mr Fairweather’s email of 6 February 2023, he sent a long email addressing Mr Fairweather’s authority and why he said the directions should not be changed. He said he was criticising the acceptance of an application that he had not known about and querying Mr Fairweather’s authority to change directions. Mr Fairweather was effectively allowing HMRC to take control of the proceedings and dismissing everything Mr Stenhouse had said. Judge Sinfield then carried out an “investigation” and discovered the email not copied to Mr Stenhouse but denied any secret proceeding or any wrongdoing. That he said demonstrated a closed mind not least because Judge Sinfield did not ask for any clarification of Mr Stenhouse’s criticisms. The nature of the submission, therefore, seemed to be that the “whitewash” lay in saying that any suggestion of wrongdoing by Mr Fairweather was unacceptable and in failing to interrogate further what had happened and why.

[105]This summary of Mr Stenhouse’s contribution to the email chain bears little or no relation to the emails he, in fact, sent which were in far more trenchant terms than queries and polite criticisms. There was no reason for Judge Sinfield to seek clarification of Mr Stenhouse’s criticisms which were clear. There was patently an express allegation of misconduct in the “secret proceeding”. The “investigation” of the conduct of the proceedings disclosed one email of little significance not sent to Mr Stenhouse and no other engagement of the FTT with HMRC of which Mr Stenhouse was unaware. That email was readily provided to Mr Stenhouse and he ought to have seen from it that it added nothing. There was then nothing further to be done other than to deal with Mr Stenhouse’s submissions on procedural and substantive matters as Judge Sinfield carefully and thoroughly did.

[106]There is no aspect of this that merited the description of a “whitewash” in the sense given above or provided a reasonable explanation for Mr Stenhouse’s use of the term.

[107]Mr Stenhouse submitted that the term “cover up” had a distinct meaning that involved steps to remove or destroy or disguise evidence so that a prejudicial matter did not come to the attention of anyone else and that was a meaning different from that of a whitewash. Since he had, in fact, accused Judge Sinfield of a whitewash and not of positively removing or destroying or disguising evidence, it appeared to be Mr Stenhouse’s case that he could not have been found guilty of alleging a cover up both because it was not the term he had used and not, on analysis, what he had alleged.

[108]That submission ignored the accusation in Mr Stenhouse’s email of 17 April 2023 that either no records had been made of the “private and secret dealings” or that the records had been removed from the file. It also ignored Mr Stenhouse’s acceptance in answer to the question from the Chair that a whitewash involved intent and a deliberate attempt to defect blame.

[109]So far as the argument on the semantic difference between the words is concerned, I agree with the DT that this was a distinction without a difference for the purposes of these charges. Firstly, and most simply, in common English usage the terms are readily interchangeable. The term whitewash derives from painting over something, whether for aesthetic reasons or to disguise blemishes, with the effect of hiding what is beneath. In other words, the unacceptable or flawed appearance is covered up. That is consistent with the definitions from the OED which Mr Stenhouse included in the hearing bundle. The definition of the noun includes “something that conceals faults or gives a fair appearance” and the definition of the verb includes “To give a fair appearance to; to free, or attempt to free, from blame or taint; to cover up, conceal, or gloss over the faults and blemishes” (my emphasis).

[110]Secondly and in any event, Mr Stenhouse’s emails, in effect, made an extraordinary allegation of secret collusion between the FTT and HMRC to strike out his claim – which I repeat was itself a misreading of the email correspondence and directions given. He was told that there was nothing in this allegation and that there was only one email that had been sent by HMRC to the FTT and not copied to him which was, at that point, also provided to him. Yet he persisted in his allegations of secret proceedings and collusion when the complete email correspondence disclosed no such thing. The only possible inference was that Mr Stenhouse was alleging that Mr Fairweather and Judge Sinfield were withholding evidence that would substantiate those allegations and that was an allegation he also made expressly. Even on Mr Stenhouse’s meaning of cover up, he was alleging a cover up.

[111]Mr Stenhouse further submitted that the DT failed to ask itself the vital question, applying the reasonable observer test:

“… did the Appellant have or appear to have a reasonable explanation for complaining that he considered that the actions of [Mr Fairweather] that he was complaining about were being “whitewashed” – that is, were being treated as innocuous, unimportant, within his authority, and entirely proper.”

[112]Mr Stenhouse’s formulation of the reasonable explanation test in this context appears to derive from the tribunal’s decision in the Kamlish case where the tribunal was expressly concerned with the issue of reasonable grounds for a belief. Leaving aside any question of relevance in this case, the short answer to the question that Mr Stenhouse argues the DT should have asked itself is that he did not have any reasonable explanation. That is the case because his complaints were made on the basis that Mr Fairweather had acted improperly and as part of the alleged secret proceeding. There was no basis for that complaint and that was what the President’s investigation of the matter showed. That was all fully and carefully set out for Mr Stenhouse in the emails from the President. There was no question of the President dismissing improper conduct as irrelevant, unimportant, acceptable, or however one might want to describe it, for the simple reason that there was no such conduct.

[113]Mr Stenhouse nonetheless also argues that the DT failed to engage with the evidence and, had it done so, it could not have found that the allegation of “whitewashing” was unfounded. He submits that the decision contains no reasoned basis for deciding that it was a “baseless allegation”. It will be apparent that I do not accept that submission. Without repeating the detail set out above, the only matter that Mr Stenhouse was not party to was a short email from HMRC to the FTT containing nothing of substance that had not been set out in the letter to him; there was nothing to support the allegation of a secret proceeding; and Mr Fairweather had, on a proper reading of his email of 6 February 2023, not done what HMRC asked and had given Mr Stenhouse an opportunity to make representations as to how his claim should progress.

[114]Mr Stenhouse argues that the DT wrongly decided his case/ defence in respect of his Article 10 rights (freedom of expression). In his grounds of appeal, he refers to Article 11 rights but that is an obvious slip. In this context, he makes the point again that the DT failed to follow the previous tribunal decision in the Proudman case.

[115]Mr Stenhouse was clear that he did not seek to impugn the entire disciplinary procedure or any aspect of the Code of Conduct but submitted that the decision was wrong in other respects. In summary these were:(i) The decision was a direct attack on his constitutional rights as a litigant in person (i) to present his case and make his submissions to the FTT and

(ii) to raise legitimate and serious objections to the way his case was dealt with. (ii) The decision was a direct and illegitimate attack on the constitutional position of all barristers in presenting and arguing legal cases in court.

(iii) The decision was a direct attack on his freedom of expression both in his capacity as a litigant in person and a barrister appearing before a court or tribunal to argue a case contrary to the case law of the ECHR, citing Morice v France; Kyprianou v Cyprus(2005) at [174]-[175];Peruzzi v Italy(2015);and Steur v Netherlands (2004).

[116]Mr Stenhouse’s position is that the DT failed to address his defence relying on his Article 10 rights. To the extent that the decision makes reference to Article 10 (at paragraphs 44 and 45), the DT accepted that Mr Stenhouse’s emails were covered by the right to freedom of expression and noted that any interference could only be justified if it was prescribed by law and pursued a legitimate aim and it was convincingly established that the measure in question was necessary and proportionate in pursuit of that aim (relying on Diggins v BSB

[2020] EWHC 467 (Admin)

at [74]-[75]). In that case, Warby J, following his own judgment in Khan v BSB

[2018] EWHC 2184

, reiterated that the BSB’s disciplinary processes pursued legitimate aimsand thatthe issue in most cases would then be the necessity or proportionality of the sanction.

[117]At paragraph 45, the DT then said:

“The Tribunal found that the BSB disciplinary scheme pursues legitimate aims, ie inter alia, the maintenance of the reputation of the profession and the protection of the public. The rights of others including other barristers and those instructing them are also protected.”

[118]As I understand it, Mr Stenhouse’s complaint put shortly is that the Tribunal, therefore, only addressed the compatibility of the disciplinary procedure with Article 10 rights and not his specific defence. I would go so far as to agree with Mr Stenhouse that the decision is not expressed in terms that refer to the specific issues he raised and that are set out paragraph 115 above or in terms of the necessity or proportionality of sanction. That is not, however, sufficient to give rise to a substantive ground of appeal or any reason why the decision should not be upheld.

[119]For the reasons I have already addressed, the allegations of personal misconduct that Mr Stenhouse made against Mr Fairweather were not part of legal submissions or legitimate opinion on judicial decisions. The same is true of the allegations against Judge Sinfield. In his oral submissions, Mr Stenhouse argued that the emails were part of the proceedings relating to his tax appeal (and thus attracted immunity from suit). He is patently right that some aspects of them were but his personal accusations of misconduct were not.

[120]In fact, both the directions given by Mr Fairweather and the emails which were, in effect, from Judge Sinfield, repeatedly gave Mr Stenhouse the opportunity to make legal submissions on the procedural and substantive issues that were identified or that he might wish to identify.

[121]In my judgment, therefore, whilst Mr Stenhouse’s submissions might have been addressed more fully in the decision, it makes no difference to the outcome and it cannot be said, as Mr Stenhouse seeks to do, that the DT acted unlawfully or irrationally or perversely so as to invalidate the decision.

Ground 5 (“Abuse of process”)

[122]This ground alleges abuse of process with three limbs. I quote Mr Stenhouse’s skeleton argument on the nature of the alleged abuse of process: “(i) the Charges set out in the Charge sheet were not supported by any evidence, they effectively amounted to a personal prosecution of the Appellant by the President, motivated by improper motives (retribution, animosity, personal sensitivities, and a desire to protect the Tribunal from misconceived notions of reputational damage), acting through the agency of the BSB and IDB who simply made a wholesale adoption of the President’s absurd and improper allegations of “conspiracy”, “cover up” and “rudeness” … and (ii) the process followed by the IDB in recommending disciplinary proceedings against the Appellant, which was fatally flawed for the reasons set out in the Appellant’s Skeleton Argument, Skeleton Argument Addendum, and his final oral submissions, including the fact that the IDB clearly conducted what amounted to a mini-trial in the absence of the Appellant and decide[d] that the Appellant was guilty of breach of CD5 and lack of integrity, thereby grossly exceeding its authorised remit and acting ultra vires, thereby rendering the disciplinary proceedings null and void and ultra vires; … and (iii) the BSB failed to act as an independent and objective “prosecutor” in disciplinary proceedings and instead allowed itself to become simply the mouthpiece of the Complainant and his supporting witness…” and

and

[123]On the matters set out above and as to (i), Mr Stenhouse repeated his arguments in relation to “conspiracy” and “cover up”, submissions which I have already rejected. The words, as Mr Stenhouse pointed out, are taken from the President’s emails and/or the terms of the complaint that he made to the BSB. It seems to me, therefore, that what Mr Stenhouse is seeking to argue is that the President acted improperly in making the complaint at all, and particularly in using terminology that was not in Mr Stenhouse’s emails, and that the adoption of that terminology was then necessarily an abuse of process.

[124]There is no merit in that argument. For the reasons I have already given the particularisation of the charges (which were primarily of making unfounded and serious allegations of misconduct in public office) as ones of alleging “conspiracy” and “cover up” were common sense and objectively rational descriptions of the allegations Mr Stenhouse had made. They may have emanated from the President’s reading of the emails but that did not somehow undermine the rest of the process and render it abusive. The suggestion that the President was improperly motivated in making any complaint is also utterly unfounded. It seems to be based on nothing more than Mr Stenhouse’s continued conviction that he had said nothing rude or objectively offensive (which is wrong) so that anyone who did take offence and make a consequent complaint must be improperly motivated.

[125]Mr Stenhouse further submitted that the charge amounted to an allegation that he had attempted to pervert the course of justice because he was, on the BSB’s case, wrongly alleging that Mr Fairweather and Mr O’Shea had committed the criminal offence of misconduct in public office. It followed, he argued, that the evidence to uphold the charge needed to be all the more cogent. This latter argument lacks sense. The charge was one of misconduct contrary to a professional code of conduct and attracting a disciplinary sanction and not a charge of attempting to pervert the course of justice by intentionally making false accusations. Indeed, Mr Stenhouse has never accepted that his accusations were false.

[126]In relation to (ii), the IDB necessarily has to consider whether there is anything in the complaint and, if there is not, it goes no further. If it goes further, the charges are laid before a disciplinary tribunal. That involves no decision of guilt. As far as I see, Mr Stenhouse’s case amounts to one that since, for all the other reasons he relies on, he could not be in breach of CD5, in order to lay charges the IDB must have concluded that he was in breach. The argument is circular and self-serving. There is not a shred of evidence of any abuse of process in the conduct of the IDB.

[127]In relation to (iii), Mr Stenhouse relied on the arguments that(a) counsel for the BSB did not draw to the attention of the DT the decision in the Proudman case thus deliberately failing to put before the DT a highly relevant recent decisionand

(b) counsel failed in closing submissions to make any reference to the decision in Kwiatkowski v BSB

[2022] EWHC 1800 (Admin)

– in which at [21]-[22] Choudhury J set out the objective test - and the need to apply a reasonable observer test and/or objective contextual analysis. He relies on both of these matters as demonstrating a lack of independence on the part of the BSB.

[128]Firstly, as Mr Davidson submitted and I have already said, a previous decision of a disciplinary tribunal has no status as precedent and there cannot have been any professional obligation to draw to the DT’s attention what might be argued to be a decision adverse to the BSB’s argument in the case then before the DT. Even if any complaint could be made about conduct in this respect, it would not amount to an abuse of process.

[129]Secondly, Mr Stenhouse’s argument about closing submissions makes no sense. As set out above, the BSB clearly stated at the outset and in answer to the chairman’s question that the relevant test was an objective one. The nature of Mr Stenhouse’s argument is that, during the course of the hearing, it became apparent that the DT was taking a different approach and one that involved considering what subjectively he had intended his words to mean. Those are the issues considered above in relation to the recusal ground. Mr Stenhouse then argues that the BSB jumped on the bandwagon (my expression not his) and, in effect, abandoned the approach it had taken at the outset, the basis for that argument being the alleged failure to repeat the submission about an objective test in closing submissions supported by authority.

[130]I have already rejected the argument that the DT applied the wrong test. That the objective test was the relevant test had been established at the outset. The absence of repetition in later submissions, if that is the case, cannot found a complaint that the BSB was acting improperly and that there was any abuse of process. Even if the BSB had argued that the test was a subjective one, that would have been a matter of law on which both parties could have addressed the DT. If the DT had reached the wrong conclusion as to the relevant test that might be a ground of appeal but on a point of law and not on the grounds of abuse of process.

[131]Mr Stenhouse also asked rhetorically whether anyone had considered whether the evidence supported the case against him. He submitted that, if anyone had done, and still advanced these charges either they were guilty of a serious lack of judgment or the wholesale adoption of Judge Sinfield’s words demonstrated a lack of objectivity rendering the process inherently unfair. For all the reasons already given, this argument is hopeless. The charges were made after going through the BSB’s processes and properly made and the use of the language of the complainant fairly reflected what had been alleged by Mr Stenhouse.

[132]The DT dealt with Mr Stenhouse’s case on abuse of process shortly at paragraphs 41 and 42 of the decision. The DT characterised Mr Stenhouse’s case as being that the allegations went beyond those referred by the IDB and rejected that submission. The arguments I have set out above are somewhat different but that is not material because there is no merit in them.

Ground 6 (“Standard of Proof”)

[133]The Enforcement Regulations in the BSB Handbook, at rE164, provide:

“The Disciplinary Tribunal must apply the civil standard of proof when deciding charges of professional misconduct …”

[134]Before the DT Mr Stenhouse argued that the standard of proof in disciplinary proceedings such as this should be the criminal standard and that the BSB had no legal right to change the standard from the criminal to civil standard by amendment of the Enforcement Regulations. The DT considered that it was bound by Bibi v BSB

[2022] EWHC 921 (Admin)

at [46]-[47] and applied the civil standard.

[135]In his grounds of appeal, Mr Stenhouse raised this issue again arguing that at common law the standard was the criminal standard (as it had been before the amendment of the Enforcement Regulations in 2019), that the BSB did not have the power to change the standard, and that Bibi was decided per incuriam. These arguments were principally advanced by Mr Stenhouse in his oral submissions in reply. I do not set them out in detail because the BSB’s position was clearly right. The BSB is established under the auspices of the Legal Services Board. The BSB applied to the LSB to amend the Enforcement Regulations and that amendment was approved. No primary legislation was required. The civil standard has repeatedly been applied in disciplinary tribunal decisions and upheld by the High Court.

Ground 7 (“Adversarial Hearing and Appellant’s Evidence”)

[136]Ground 7 relates to the adversarial nature of the procedure and the treatment of Mr Stenhouse’s evidence. In summary, Mr Stenhouse submits that the DT failed to conduct an adversarial hearing and made a decision which was against the weight of the evidence. He argues that the DT ignored all his evidence and also that he was barely cross-examined on this evidence. He observes that his evidence is barely referred to in the decision. He submits further that the DT ignored his submissions and all his cross-examination of Judge Sinfield and Mr Fairweather. He concludes in his skeleton argument that: “… the Tribunal failed to conduct an adversarial hearing, and the decision of the Tribunal was made against the weight of the evidence, failed to consider and apply the law correctly or at all, is unbalanced and unfair, unlawful, irrational and perverse, is in breach of its appointment by the Council of the Inns of Court, and in beach of Article 6 Fair Trial”.

[137]As to Mr Stenhouse’s submissions, many of them are dealt with comparatively briefly in the DT’s decision but they are addressed, they were not ignored and there is no error of law on the face of the decision. As to the evidence, as I have already observed, there is an inherent contradiction in Mr Stenhouse’s case. On his own case what was material was the objective meaning of what he had said in his emails in response to emails from the FTT which should similarly be objectively construed. In its findings on the charges, that is exactly what the DT focussed on. On Mr Stenhouse’s own case, any evidence of his subjective intent was not material. In any case, his evidence was largely submission and he was cross-examined at some length giving him full opportunity to advance his case.

[138]To the extent that the DT referred to the evidence of Mr Fairweather, it was in the context of whether he had ceded control to HMRC and done what he was asked to do by HMRC. On the documentary evidence, he had not. That was not directly challenged in cross-examination and he was rather asked questions about why he had not sought representations from Mr Stenhouse before giving further directions. He explained that he then gave both HMRC and Mr Stenhouse the opportunity to say how they wished to proceed (which was consistent with the documents). His evidence, therefore, went little further than what was on the face of the documents. The Tribunal found him to be a credible witness. That was a decision on the facts that was open to the DT and there is no basis to challenge it.

[139]To the extent that the DT referred to the evidence of Judge Sinfield, it was in the context of the judge’s views of the email on 4 April and the DT observed that the judge was a careful and highly reasonable witness of truth who dealt courteously with all the points put to him by Mr Stenhouse. Judge Sinfield’s evidence in this respect is subjective in the sense that he explained how he read the emails. His evidence was not objected to. It was evidence that the DT was entitled to take into account so far as it was relevant. In the event, the DT’s decision did not turn on what Judge Sinfield thought but on the meaning of the words that had been used to him.

Ground 8 (“Improper Motives of the Tribunal resulting in a Biased and Unfair Decision”)

[140]Mr Stenhouse related this to his ground 1. He submits that the DT was motivated by a desire to justify, uphold and exonerate the actions and allegations of both Mr Fairweather and Judge Sinfield and protect them from criticism or opprobrium. He contends that this is the only possible explanation for the superficial nature of the decision, the errors in the decision identified in his grounds of appeal, and the dismissal of the recusal application. There is no merit in any of these complaints about the decision for the reasons already given and this ground must fall away. For the avoidance of doubt, there is equally not a shred of evidence that the DT was improperly motivated.

Ground 10 (“Serious Internal Inconsistencies and Contradictions”)

[141]Under this ground of appeal, it is argued there were serious internal inconsistencies and contradictions in the decision and that such inconsistencies and contradictions undermine the decision to such an extent that it is rendered unlawful and in breach of Mr Stenhouse’s Article 6 rights.

[142]The inconsistencies that Mr Stenhouse identifies relate to charges 1(a) and 1(b). To summarise, the DT described Mr Stenhouse’s actions as “very serious” but nonetheless found no breach by him in terms of integrity and, in relation to sanctions, found that there was moderate culpability and moderate harm. Mr Stenhouse also repeats and relies on his submissions in relation to ground 2.

[143]There is no inconsistency in the DT’s findings which relate to different aspects of the Code of Conduct. The DT was entitled to find that the making of very serious and baseless allegations of misconduct and doing so in terms that were rude was a matter likely to diminish the trust and confidence of the public in Mr Stenhouse and the profession but at the same time find that this was not something that the public would reasonably consider undermined Mr Stenhouse’s integrity in the sense that he himself was acting through improper motives.

[144]I will come to the application of the sanctions guidance. Consideration of sanction arises after a finding of professional misconduct has been made and the tribunal must consider where this serious charge falls within a range of seriousness for the purposes of application of the sanctions guidance. To find moderate culpability and harm is a proper application of the guidance and not evidence of any inconsistency.

Grounds 11 and 12 (Sanctions and costs)

[145]Mr Stenhouse did not attend the sanctions hearing but made written submissions on the day of the hearing and the DT decided to proceed in his absence. No complaint is made about that decision.

[146]The DT considered the Sanctions Guidance Version 6 dated 1 January 2022. The DT found that the applicable Misconduct Group was Group I – unreasonable behaviour towards others. This is described in the Guidance as a wide Group intended to cover personal behaviour of barristers towards others. The DT found that the misconduct fell within moderate culpability and moderate harm. The harm identified was to the reputation of the profession; the reputation of Mr Fairweather and Judge Sinfield; the working life of Mr Fairweather; and the administration of justice. The Guidance indicated, therefore, a sanction of a medium level fine (between £5,001.00 and £15,000) and a suspension of up to 12 months. The DT considered aggravating and mitigating factors, the latter included Mr Stenhouse’s previous “good character” and the absence of any previous adverse disciplinary findings. Taking these matters into account, the sanction imposed was a fine of £7,500 on each count.

[147]Mr Stenhouse contends first that the appropriate sanction was the requirement of an apology only since that is what Judge Sinfield had asked for. That submission is misconceived. Not only does it ignore the Guidance but it also ignores the fact that no apology was offered and instead Mr Stenhouse persisted throughout the proceedings with his case that his emails were factually accurate, that there was wrongdoing on the part of Mr Fairweather which Judge Sinfield had sought to whitewash, and, at the same time, that that he had not made the allegations charged. If all that were now required was an apology, it would render the disciplinary process pointless.

[148]In the alternative, he submits that the DT has failed to follow the Guidance properly or at all and failed to give sufficient reasons for not doing so. Mr Stenhouse submitted that for a man of previous good character and professional conduct, the sanction should have been no more than a low level fine. I am entirely satisfied that the DT took into account these factors, followed the Guidance with care and reached a decision well within its discretion.

[149]The further specific point that Mr Stenhouse raises is that he faced two charges and separate fines have been imposed in respect of each charge. Since the charges arise out of the same facts, he submits that that results in an excessive sanction because he is being fined twice for the same thing. I do not accept that submission for two reasons. Firstly, there were two charges because the allegations made in the emails related to the conduct of two individuals. It is not, therefore, wrong in principle to impose distinct sanctions. Secondly, even if the DT had imposed one sanction for the whole of the conduct that formed the basis of the charges, taking account of the conduct as a whole and the accusations levelled at both a member of the FTT staff and a judge, the fine cannot be said to be outside the bounds of what could properly be decided by the DT.

[150]As to costs, the DT ordered Mr Stenhouse to pay the BSB’s costs in the amount set out in the schedule which had been properly served on Mr Stenhouse. Mr Stenhouse recognised that his appeal against this order essentially turned on the outcome of this appeal but he also repeated the submissions he had made to the DT.

[151]Firstly, Mr Stenhouse submitted that, since each of the charges had two elements (a breach of CD5 and rC8, there were 8 charges against him. Only 2 of the charges had been upheld. He had, therefore, been over-prosecuted. That over-prosecution and the measure of the BSB’s success should be reflected in a significant reduction in the BSB’s recovery of costs (to two eighths of the claimed costs). The DT decided that no deduction was appropriate for the two charges that had not been proved (that is charges 1(c) and 1(d)) – they were the least serious and had been properly brought. That was a decision on costs well within the discretion of the DT.

[152]Secondly, Mr Stenhouse relied on an offer he had made on a without prejudice save as to costs basis in an email to the BSB on 2 December 2024. That offer was:

“to make a formal written apology to Judge Sinfield for my words to him “stop messing me around and get on with it” on the basis that such words were ill-considered at the time I spoke and I accept that Judge Sinfield found them rude and offensive, but not so serious as to amount to professional misconduct.”

He offered to bear his own costs and pay 50% of the BSB’s costs. Mr Stenhouse did not offer any apology to the allegation of whitewashing and offered no apology to Mr Fairweather. He said that he had not offered an apology when asked to do so by Judge Sinfield because the judge was asking him to apologise for things he had not said and the apology would have been “under duress”, that is, the threat of a complaint to the BSB.

[153]The BSB’s response on 11 December 2024 was that the offer was not a suitable way forward. Mr Stenhouse submitted that that response demonstrated poor judgment. It was not, he submitted to the DT, a proper or legitimate response and had it been accepted the costs of substantial additional hearings would have been avoided. Accordingly, he argued that the BSB should pay his additional costs after 11 December 2024 and there should be a set-off of costs.

[154]The DT’s decision does not address this particular aspect of the submissions but it can readily be inferred that the DT rejected them for good reason. Mr Stenhouse’s offer was too little too late and there was no reason the DT ought to have, as a matter of principle, taken it into account.

Conclusions

[155]It follows that Mr Stenhouse’s appeal is dismissed on all grounds.