A question of discipline

They may make unlikely allies, but an anti-racism advocate and a fox-hunting barrister have joined forces to attack the Bar Council
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The Independent Online

Nigel Ley appears to be the very epitome of an Establishment barrister. The public-school educated advocate, who is an expert in drink-driving law, likes nothing better than a canter across the fields of Leicestershire and Lincolnshire with the Cottesmore Hunt.

But appearances can be deceptive. For 20 years, Ley has been a rebellious figure at the Bar, taking every opportunity to expose what he sees as the failings of his ruling body. Last month, he claims, he paid the price for his critical probing of Bar Council affairs when he was fined £1,600 by the profession's disciplinary tribunal for overcharging in four drink-driving cases.

The complaint was brought by Lord Irvine of Lairg, the former Lord Chancellor, who argued that by recklessly over-claiming in these public-funded cases, Ley was guilty of discreditable behaviour. In his defence, Ley argued that his claim for legal aid was no more than other barristers would have charged in similar circumstances. He even challenged each barrister member of the tribunal panel, including the chairman Judge Henry Blacksell QC, to say what they would have billed. The tribunal ruled his questions irrelevant and went on to find him guilty on all four charges.

Last week, another senior barrister found himself on the wrong end of a tribunal ruling. Peter Herbert, a civil-rights lawyer, was reprimanded for breaching the Bar's strict code of conduct after he spoke to the media about a case in which he was involved. The complaint against Herbert, a judge and a member of the Metropolitan Police Force Authority, was made by Lord Laming, who chaired the inquiry into the murder of eight-year-old Victoria Climbié.

Lord Laming decided to act when he heard Herbert describing as "institutionally racist" the decision to prosecute the social worker Carol Baptiste for failing to give evidence in the Climbié inquiry. Herbert reacted angrily to the finding, condemning the Bar Council as "deliberately and maliciously racist".

He said after the case: "I am deeply saddened and disappointed. It is a very sad day for the Bar Council, really, when a person with my background of integrity and public service has to be vilified in this way. Clearly there was a bit of a kangaroo court, which went through the motions of listening to the evidence and rejecting all of it. This is not only institutional racism - this is deliberate and malicious racism, because the Bar Council knows what it is doing."

Nigel Ley, who has represented a number of high-profile sportsmen on drink-driving appeals and has written a practitioners' guide on the subject, made a point of attending Herbert's hearing last week. He said afterwards: "It is not a decision I would have reached. It seems to me that this is more evidence to support the claim that the prosecuting policy depends not on what you are alleged to have done, but who you are."

Ley and Herbert are unlikely allies. One is a pro-fox-hunting campaigner, the other an anti-racism activist of long standing. But they are united in their belief that the Bar Council has deliberately used trivial complaints to make examples of them.

Both cite the case of Allan Green, the former Director of Public Prosecutions caught kerb-crawling near King's Cross in London in 1992. At the time, there was a feeling that Green had suffered enough (his wife later committed suicide), and the Bar Council decided to take no further action.

To Herbert and Ley, this is just more evidence of a wider conspiracy. Herbert argues that the Green case shows that there is a racist element to the Bar Council's prosecution policy, and he has now issued proceedings against his ruling body under the race-relations legislation. He claims there are other black and Asian barristers who have similar claims, and he has asked the Bar for figures that he says will show that barristers from ethnic minority backgrounds face a disproportionate number of disciplinary prosecutions.

The Bar Council refutes such allegations. A spokesman rejected the charge that its complaints system is unfair: "The fact of the matter is that our complaints system is closely scrutinised by the Legal Services Ombudsman. Her reports are in the public domain and show that we have an excellent record of complaints handling, which can command both public and professional confidence."

The council also stands by its record on the fair treatment of black and Asian barristers. Declining to comment on the facts of any cases, the Bar said: "The fact that 20 per cent of new entrants to the Bar are from ethnic minority backgrounds is clear proof that the Bar as a profession is the most attractive to them that there is in the country. We also stand by our record on having the first and most comprehensive equality code that there is."

This isn't the first time Herbert has been hauled before the disciplinary tribunal for speaking to the media. Three years ago, he was cleared of a similar charge when he spoke to The Independent about claims made by a lawyer alleging racism in the Crown Prosecution Service. It was the first time anyone had been brought before a full tribunal for breaching this particular rule. Last week, Herbert made history again when he became the first barrister to be found guilty of breaching this rule.

Herbert, who chairs the Society of Black Lawyers and is a member of the Home Secretary's advisory panel on race, has never flinched from speaking out against injustice. He has been particularly critical of the Bar for failing to support black lawyers. Ley, too, has made enemies by criticising the Bar for not doing enough to protect its junior members from the erosion of magistrates' court work.

Sceptics might say that the two barristers' troubles stem not from their prickly relationship with their profession, but from their unwillingness to accept the findings against them. But their defiance has focused attention on the workings and policies of the Bar's disciplinary process. Complaints are handled first by the Bar's commissioner and then by the Professional Conduct and Complaints Committee (PCCC), which decides whether a case should be prosecuted.

A recent Bar Council working party reported that the only way to change the perceptions of bias in the prosecution process was to introduce more lay membership of the PCCC and disciplinary tribunals and panels. The group also recommended a need to change the way in which barrister members of the PCCC or disciplinary tribunal and panels are selected and trained.

While hearings are supposed to be in public, the press is rarely given notice of a barrister's appearance before a tribunal. This means that most cases are prosecuted in private. Until last month, the Bar Council published findings against barristers on its website, but this service has now been quietly withdrawn. Such behaviour serves only to feed the conspiracy theories.