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

The Tribunal considered the seriousness criteria in Group B and the criteria in the Annex: [50]. The seriousness criteria in Group B comprise a series of factors for culpability and harm which “may go towards determining the seriousness of the misconduct within this Group”. The “criteria in the Annex” are those in Annex 2, which sets out “general factors that should be used to assess seriousness of misconduct (Step 2 - Culpability and Harm) and in applying aggravating and mitigating circumstances (Step 4)”.

The Tribunal reached a unanimous view that “all the conduct [fell] within the Upper Range of seriousness both as to culpability and harm”: [50]. Its reasons were as follows:

“51.

In terms of Culpability, the following factors apply:

Culpability - Under Group B

a.

It took place in a professional context.

b.

It took place in front of others.

c.

It was directed at persons in a vulnerable situation.

Culpability factors in the Annex

d.

The misconduct was reckless.

e.

It was sustained – it started in one venue and continued at the next venue.

f.

There was significant disparity in seniority and experience.

g.

The [Appellant] was responsible for the circumstances giving rise to the misconduct. He was already inebriated when he attended the event and it was he who approached the Pupils.

h.

The harm caused could easily have been foreseen. In fact the [Appellant] should have been acutely aware that his conduct was likely to be harmful given what had been said about his behaviour at the previous disciplinary hearings and given his own acknowledgement and regret after those earlier incidents.

52.

In terms of Harm the following factors apply:

Harm under Group B.

a.

Both A and B were uncomfortable and embarrassed on the night and felt anxious about making the report. The misconduct caused significant anxiety to Pupil B.

b.

The misconduct added to the stress of pupillage and the beginning of life at the Bar.

c.

It had a marked impact on the psychological wellbeing of Pupil B.

d.

It caused injury to the feelings of both Pupils.

Harm factors in the Annex

e.

The detrimental impact on the public confidence in the legal profession is significant”.

The Tribunal noted at [53] that several of the Appellant’s referees had said that “crude language is prevalent at the criminal Bar in Manchester as a mechanism for letting off steam”. However, the Tribunal continued:

“…It may be, as suggested by some of the referees, that robust individuals of equal seniority do not take offence and are able to laugh off the [Appellant]’s bawdy sense of humour and perhaps give as good as they get. We are in no doubt that the offensive comments directed at the two young female pupils by the [Appellant], an older man, are examples of sexual harassment and that such harassment damages the reputation of the Bar.”

The Tribunal concluded that there were no applicable aggravating factors in Group B, but that the following aggravating factors from the Annex applied:

“54…a. Previous disciplinary findings for similar offences. At the time of these matters the [Appellant] had been sanctioned by his Chambers and by BTAS for his misconduct towards the male pupil in 2017 and he was aware that he was under investigation for his behaviour towards the female mini pupil in 2015. The similarities between his behaviour towards the male pupil and Pupils A and B are striking – offensive and lecherous comments and inappropriate touching whilst in drink. In 2018 the Tribunal chairman had warned the [Appellant] not to socialise professionally if he had been drinking. His head of Chambers had issued a similar warning.

b.

Lack of insight. His initial response was to explain his comments as innocent and harmless banter. He did not realise that Pupils A and B were upset by his behaviour. It was not until late 2022 that he recognised that his behaviour amounted to sexual harassment.

c.

The likelihood of repetition. Notwithstanding Mr Scamardella’s able submissions and the fact that there have been no reports of misconduct since 2020, we cannot ignore the fact that in the five years from 2015 to 2020 the [Appellant] behaved in a similar way towards five different junior members of the Bar. We are unanimous in our view that there remains a likelihood of repetition particularly if the [Appellant] is inebriated.

d.

Alcohol misuse was linked to the misconduct.

e.

The [Appellant] was a barrister of many years experience”.

The Tribunal concluded that there were no applicable mitigating factors in Group B, but that the following mitigating factors from the Annex applied:

“a.

The [Appellant] admitted the misconduct, albeit some 2 years and 10 months after the event.

b.

The [Appellant] has expressed remorse.

c.

The [Appellant] has taken voluntary steps to address his behaviour

d.

The [Appellant] has attempted to prevent recurrence.

e.

There are many referees, men, and women, who speak very highly of the [Appellant]”.

These factors led the Tribunal to conclude that the matters in 2020 fell “within [the] upper range of seriousness for which the indicative sanction is disbarment”: [56].

The Tribunal addressed the question of whether delay on the part of the BSB in investigating and prosecuting the complaint had prejudiced the Appellant as follows:

“57…We are unanimous in our view that, although there was clearly delay on the part of the BSB, the [Appellant]’s own stance has contributed a great deal to the delay. He was aware of the allegations within days of the misconduct but, at no stage prior to October 2022, did he indicate a preparedness to admit any misconduct. We are not persuaded that the fact that it was not until June 2022 that the statements were served alongside the charges has caused any prejudice. The [Appellant] received the most important statements in February 2020 and confirmed that he had read and digested them. In June 2020, the allegations were summarised and in April 2021 the charges were served. We judge that the [Appellant]’s insistence that the BSB should view the footage was understandable and reasonable since it might have been relevant to any allegations of misconduct in Mojo. (We have not seen Charges 7-9 so we do not know if they relate to the time spent at Mojo.) However, we judge that it was open to the [Appellant] to indicate back in 2020 that he would admit the misconduct in the earlier part of the evening and that it was his choice, for whatever reason, not to admit anything until well over 2 years after the event. On a practical level, it is difficult to see how the 2020 charges could have been “rolled up” at the sanctions hearing in 2021 unless by then the [Appellant] had admitted at least some of the 2020 allegations and had sought to have a consolidated sanctions hearing”.

The Tribunal recalled at [58] the purposes of sanctions and found that (i) the maintenance of public confidence and trust in the profession and the enforcement of the system; and (ii) the need to act as a deterrent to the individual barrister or regulated entity, as well as the wider profession, from engaging in the misconduct subject to sanction, were particularly relevant. The Tribunal continued:

“…there have been long standing concerns about sexual harassment at the Bar. Behaviour that might have been tolerated and even expected in the past is no longer acceptable. Regrettably, such behaviour is still widespread. Misconduct such as that exhibited by the [Appellant] needs to be deterred. We have borne in mind the fundamental principle of proportionality. We have considered with care whether, in all the circumstances, a term of suspension would suffice to mark the gravity of the offending. We have also considered whether the delay by the BSB together with the mitigating factors renders the indicative sanction unfair or disproportionate. We have concluded unanimously that they do not. In all the circumstances of this case, we judge that the only just and proportionate sanction is disbarment”.