McCarthy, Regina (on The Application of) v The Visitors To The Inns of Court and Another: CA 20 Jan 2015

The court was asked whether the decision of the Visitors to the Inns of Court dismissing Mr McCarthy’s appeal from the Bar Disciplinary Tribunal should be quashed with a view to the underlying matter being remitted to the Tribunal. The Tribunal disbarred Mr McCarthy following a finding that after a dispute had arisen he had fabricated letters setting out his terms of work to a client for whom he acted under direct access provisions, rather than before the work was done. He appealed saying that the Board had disobeyed its own rules by failing to disclose a previous statement of a witness which may have assisted him. It was alleged that the Board’s officer had guided the witness in making a new statement.
Held: The appeal succeeded. The misbehaviour of the Board led to the withholding of evidence which may have had direct effect on the cerdibility of the claimant’s husband. Although the statement went to a lesser issue, his credibility was vital in the greater issues.
‘TA’s second witness statement of 158 paragraphs dated 29 October is an amalgam of evidence properly so called, comment and argument intended to demolish Counsel’s defence to the charges, rather than to provide unvarnished evidence. It was this document that stood as TA’s evidence in chief. The first statement remained undisclosed.’
‘In the light of the central place TA’s credibility occupied in the Tribunal hearing, that one member of the Tribunal would anyway have dismissed charges one and two, and that cross-examination on the first statement was capable of undermining TA’s credibility given the differences between the two statements, there was in my judgment a real possibility that the Tribunal would have come to a different conclusion had disclosure been made. ‘
Burnett LJ said: ‘What happened was extraordinary. A conscious decision was taken by an official at the BSB which had the effect of subverting the rules which provide for disclosure and furthermore suggested that he was blind to any sense of fairness in the conduct of a disciplinary prosecution. To my mind, that was compounded by inviting a witness to assume the role of surrogate prosecutor by producing a statement of the sort I have described. Moses LJ drew an analogy between disciplinary proceedings of this nature and criminal proceedings. To my mind that is entirely apt, if not exact, and supports the suggestion that scrupulous standards are required of the BSB acting as prosecutor. This Tribunal was concerned with very serious allegations which had the potential to destroy a professional reputation and bring to an end a professional career, even though its decision could not result in a criminal conviction. ‘

Burnett LJ, Newey, Smith DBE, JJ
[2015] EWCA Civ 12
European Convention on Human Rights 6
England and Wales
CitedP v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .
CitedLe Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
The applicants were suspended from practising medicine for three months by the Provincial Council of the Ordre des medecins. They appealed unsuccessfully to the Appeal Council and again unsuccessfully to the Court de Cassation. Dr Le Compte . .
CitedMcInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
CitedRegina v Visitors to the Inns of Court ex parte Calder CA 1993
Two barristers had been struck off for disciplinary offences. Their appeals were heard by three High Court judges sitting as Visitors, who dismissed the appeals. The barristers now sought judicial review of that decision.
Held: Justices . .
Appeal fromMcCarthy v Visitors To The Inns of Court and Another Admn 25-Oct-2013
The claimant barrister sought judicial review of his disbarrment. The Board of Visitors had found that he had dishonestly fabricated documents relating to correspondence with a client. He now said that the proceedings had been unfair, in that an . .

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Legal Professions, Human Rights, Natural Justice

Updated: 12 November 2021; Ref: scu.541551