Judicial bias, and Undue Influence – McCarthy v Bar Standards Board [2107] EWHC 969 (admin)

The High Court in McCarthy v Bar Standards Board [2107] EWHC 969 (admin) has dismissed an appeal and upheld the disbarment of a respondent who claimed his disciplinary Tribunal was influenced by judicial bias, and undue influence exercised through the press.

Mr Damian McCarthy (the respondent) previously had a Tribunal sanction against him quashed. However, the Council of the Inns of Court subsequently banned him from the profession upon re-trial.

The respondent was charged with failing to send client care letters and falsely asserting that they were sent to a client in compliance with Public Access Rules, as well as failing to make and keep sufficient records of the case and the fees payable.

The respondent appealed the decision on the basis that the chair of the Tribunal who upheld the dismissal, HHJ Veronica Hammerton (HHJ Hammerton), had been a pupil of His Honour Judge Crawford Lindsay QC (HHJ Lindsay). HHJ Lindsay had been the chairman of the previous disciplinary Tribunal, and whose decision the respondent had successfully appealed.

The respondent argued that HHJ Hammerton would defer to HHJ Lindsay’s views, whether consciously or not, and would be reluctant to reach a different outcome on the respondent’s guilt. The respondent alleged there was a striking similarity between the rulings, which demonstrated complicity in obtaining a copy of the previous report. The respondent claimed that this was a clear indication that there was little wish to undermine or contradict HHJ Lindsay.

The High Court held that there was ‘no substance’ to the allegation of any collusion, and that the Tribunal chair had been open about the connection. The High Court held that any fair-minded and informed observer would conclude there was no possibility of bias.

The respondent further claimed that the press and the BSB had ‘deprived him of a fair trial’ and had unfairly biased the Tribunal against him by reporting in the legal media that the respondent had acted dishonestly. The respondent claimed that this put improper pressure on the members of the Tribunal to find the charges against him. The High Court dismissed this allegation holding that the BSB was entitled to express its view, and that the Tribunal was aware of the principle that the BSB had to prove the respondent’s guilt.

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