O'Connor v Bar Standards Board

Michaelmas Term

[2017] UKSC 78

On appeal from: [2016] EWCA Civ 775

lord lloyd-jones: (with whom Lady Hale, Lord Kerr, Lord Wilson and Lady Black agree)

1.                  In these proceedings the appellant, Ms O’Connor, a practising barrister, claims damages under the Human Rights Act 1998 against the respondent, the Bar Standards Board (“the BSB”), alleging discrimination in her enjoyment of the right to a fair trial, in breach of article 14 of the European Convention on Human Rights (“ECHR”) considered in conjunction with article 6 ECHR. The appellant, who is black, alleges that the BSB discriminated against her on grounds of her race in bringing disciplinary proceedings which ended in her acquittal on appeal in August 2012.

2.                  On 9 June 2010 the BSB Complaints Committee brought 6 disciplinary charges against the appellant. Charges 1-3 each alleged professional misconduct in that she had conducted litigation by signing a statement of truth on behalf of a party to litigation. Charge 4 alleged professional misconduct in that, in conducting litigation by signing a statement of truth on behalf of a party to litigation, she failed to have regard to Public Access Work Guidance for Barristers, issued by the General Council of the Bar. Charge 5 alleged professional misconduct in that she engaged in conduct discreditable to a barrister by committing an offence under section 70(8) of the Courts and Legal Services Act 1990 as a member of an unregulated limited liability partnership which “filed” a defence and counterclaim with the claimant’s solicitor, thereby unlawfully conducting litigation. Charge 6 alleged professional misconduct in that she engaged in conduct likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute by committing the offence contrary to section 70(8) of the Courts and Legal Services Act 1990 referred to in Charge 5.

3.                  On 23 May 2011 a Disciplinary Tribunal found Charges 1-5 proved. Charge 6 was dismissed.

4.                  The appellant appealed to the Visitors to the Inns of Court (“the Visitors”). (It should be noted that the procedure for an appeal to the Visitors with which we are concerned in this case is no longer in force, having been replaced by an appeal to the High Court. See section 24(1) of the Crime and Courts Act 2013 which came into force on 7 January 2014; Tariq Rehman v The Bar Standards Board [2016] EWHC 1199 (Admin), at para 22, Hickinbottom J.) On 17 August 2012 her appeal was allowed. The Visitors found that none of the conduct alleged against the appellant involved any breach of the Code of Conduct of the Bar of England and Wales. Sir Andrew Collins, delivering the judgment of the…