Barristers who sexually harass colleagues could avoid harsher disciplinary action if they apologise immediately, according to plans being mooted by a legal watchdog.
The Bar Tribunals and Adjudication Service (BTAS) is currently reviewing its guidance on sanctions for barristers accused of misconduct.
The proposals say “mitigating factors” for sexual harassment could include an “immediate apology”, as well as such incidents being "isolated” and “of short duration with low risk of repetition".
In response to the watchdog’s first review of sanctions guidance, the Bar Council, which represents all barristers in England and Wales, has accused it of not making sanctions against sexual harassment at the Bar “a genuine deterrent”.
It added that an "immediate apology" could be seen as “a purely formalistic matter” and it would be difficult “to assess how genuine such an apology is" because it could be referred to as “banter”.
Derek Sweeting QC, chairman of the Bar Council, said that many of BTAS’s proposals would send a clear message to the Bar that sexual harassment will not be tolerated and help to ensure there is confidence in the sanctions regime.
Derek Sweeting QC, the chairman of the Bar Council, has criticised proposed new guidance on how the Bar handles sexual harassment in the workplace
“But we have urged BTAS to look again at some of the less robust elements of the proposals,” he added. “These include the mitigating factors to be considered when deciding on the seriousness of sanctions for sexual harassment.
“Whether an apology is genuine should not be taken for granted and would need considerably more scrutiny for it to be considered a factor in each case.
“Whether an incident is a one-off or short-lived should not be a reason for reducing sanctions. It sends entirely the wrong message to the general public and the profession about how an incident of sexual harassment, which can have a devastating effect on the confidence of the victim, is dealt with at the Bar.
“We hope that BTAS takes these points into consideration. We know that many barristers who face sexual harassment in their professional capacity do not report it for fear of how it will impact on their careers. The risk here is that the Bar will not have confidence in the way sexual harassment is dealt with and that it remains under the radar and unreported.”
In response, James Wakefield, director of The Council of the Inns of Court (COIC) and registrar at BTAS, said that “an isolated incident” of sexual harassment being a mitigating factor is only a proposal and is not in the current guidance.
He said: “This proposed mitigating factor, as well as the other mitigation and aggravating factors, were the subject of the consultation which has just closed, the results of which are being analysed and we will of course be making amendments as appropriate in light of the responses.”
He added that “there is no suggestion at all in the proposed new guidance that an immediate apology for sexual misconduct will lead to the barrister being let off; on the contrary the proposal in the consultation paper is that the range of sanctions for sexual misconduct should start at over 12 months suspension from practice”.
A second consultation on the BTAS’s full proposed guidance, including amendments made as a result of the first consultation, is due to be issued at the end of July.