Barristers, the Bar Standards Board and the structural bias of appointing disciplinary tribunals in England and Wales

Abstract

ABSTRACT The rule against bias is a central tenet of English law and it also impacts on collegiate courts which typically exercise appellate/review jurisdictions over their professional or student members. This is true of the Bar Standards Board (BSB) which has established the adjudicatory bodies to enforce its regulatory framework and has vested the procedure of fair trials upon the Council of the Inns of Court (‘COIC’) which is responsible for appointing the Disciplinary Tribunal panels that conduct hearings for professional misconduct. The COIC has been exposed for ‘irregularities’ in the findings of guilt against barristers who have been adjudged by non-qualified judges. In R (on the application of Mehey & Ors) v Visitors to the Inns of Court and Ors [2014] EWCA Civ 1630, the Court of Appeal ruled that a disciplinary tribunal or a panel of visitors appointed from barristers or lay representatives outside its pool of enrolled judges would still ensure independence and guarantee freedom from outside pressure. The impugned tribunal members who were not entitled to sit nevertheless had authority to act as de facto judges. This part of the ruling reinforces the regulatory bodies inherent power to appoint its own tribunal to adjudicate and it needs a more rigorous application of natural justice principle on the part of the BSB.