AC-2025-MAN-000091 - [2025] EWHC 2048 (Admin)

Under Ground 5, Mr Scamardella KC relied on the principle, accepted by the BSB, that disbarment is the sanction of last resort and must be reserved only for those cases where no other sentence is justifiable.

He relied on the fact that the BSB had not sought disbarment in this case. However, as the BSB had explained in its Opening Statement, it is the BSB’s policy to limit its submissions on sanction to pointing out the relevant parts of the Sanctions Guidance and the factors which the Tribunal should consider during its deliberations; and to avoid making submissions on what sanction a tribunal should impose". The BSB had invited the Tribunal to consider the full range of sanctions.

He contended that Farquharson v Bar Standards Board [2022] EWHC 1128 (Admin) assisted in showing the proper sanction that should have been imposed in his case. There, periods of suspension were considered appropriate sanctions in respect of a senior male barrister who had been convicted of criminal sexual assault on a female barrister colleague. Aside from the fact that the sexual assaults in Farquharson took place in a nightclub which bears some similarity to the events in this case that took place in the Mojo bar, the facts and procedural history in Farquharson were very different from those in this case. Sanctions Guidance Version 6 was also not applicable given the relevant dates.

Finally, Mr Scamardella KC submitted that the Tribunal had failed to explain why they came to the conclusion that disbarment was necessary and that a long suspension was not a suitable sanction. The justice of the case would have been met by such a suspension, in light of the fact that the sexual misconduct was not of the gravest kind, and in light of the significant mitigation available to the Appellant. Accordingly, the sanction imposed on the Appellant was manifestly excessive and he ought not to have been disbarred.

I cannot accept either part of this submission. The Tribunal conducted a detailed and careful exercise, identifying and weighing matters relevant to culpability and harm and aggravating and mitigating factors. They gave detailed and clear reasons. Together, these fully explain why the Tribunal did not consider that a further period of suspension was the appropriate sanction.

The Tribunal was considering an unusually serious situation in that the Appellant was being sanctioned for two disciplinary cases involving sexual misconduct towards one mini-pupil and two pupils, and had already previously been sanctioned for sexual misconduct twice by way of sexual harassment of a mini-pupil and a pupil. The Tribunal, when considering what sanction to impose, was fully entitled to have regard for his pattern of misconduct, and to reflect on the question of why the previous investigations and sanctions had been ineffective in preventing his misconduct towards Pupil A and Pupil B. For cases within the upper range of seriousness, which both cases were for the reasons the Tribunal gave, the Sanctions Guidance made clear disbarment was the “indicative sanction”: [49], [53] and [60] above.

In those circumstances the sanction of disbarment was not manifestly excessive; nor was it wrong or clearly inappropriate, which is the test applicable to this appeal.