Bar Standards Board v Stephen Howd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 14 February 2017 |
| Neutral Citation | [2017] EWHC 210 (Admin) |
| Docket Number | Case No: CO/2670/2016 & CO/2714/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2017 |
[2017] EWHC 210 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2670/2016 & CO/2714/2016
Anton Lodge QC (instructed by Direct Access) and Stephen Howd (in person) for Stephen Howd
Matthew McDonagh (instructed by the Bar Standards Board) for the Bar Standards Board
Hearing dates: 10 November 2016 & 20 January 2017
Approved Judgment
On 4 and 5 May 2016, a Disciplinary Tribunal of the Council of the Inns of Court 1 (hereinafter "the Tribunal") heard and determined eight charges of professional misconduct against Mr Howd, who is a practising barrister. Six charges were found proved; two were dismissed. By way of sanction, the Tribunal imposed a fine of £1,800 and he was ordered to pay £400 towards witness expenses.
Mr Howd appeals against the Tribunal's findings of guilt. The Bar Standards Board ("the BSB") appeals against the sanction imposed by the Tribunal, submitting that a more severe sanction should have been imposed.
The charges
The charges arose from complaints made about Mr Howd's behaviour towards female colleagues and staff at a party held at his former chambers, Zenith Chambers in Leeds, on 11 July 2014.
The complainants were anonymised. A and B were two barristers practising in Zenith Chambers. C was an apprentice administrative assistant and D was a junior clerk, both employed by Zenith Chambers.
There were two charges in respect of each complainant, each based on the same facts, but alleging different breaches of the Code of Conduct. The charges, and the findings, were as follows:
" Charge 1: Proved
Statement of Offence
Professional misconduct contrary to Core Duty 3 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, failed to act with integrity in that at Zenith Chambers summer party on 11 July 2014 he pestered A by his conduct towards her in that:
a. At approximately 10pm Stephen Howd took her right hand, pulled her towards him and attempted to kiss her on or near the lips;
b. At approximately 10pm Stephen Howd held onto A's hand and kept it on or near his crotch area for about 5 seconds until she was able to release her hand from his grip;
c. Later in the same evening Stephen Howd approached A whilst she was conversing with others and put his hand around her, squeezing her against him and attempted to kiss her on or near her lips again; and/or
d. Later in the same evening Stephen Howd approached A and put his arm around her and placed his face uncomfortably close to hers.
Charge 2: Proved
Statement of Offence
Professional misconduct contrary to Core Duty 5 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, behaved in a way likely to diminish the trust and confidence the public places in him or the profession in that at Zenith Chambers summer party on 11 July 2014 he pestered A by his conduct towards her in that:
a. At approximately 10pm Stephen Howd took her right hand, pulled her towards him and attempted to kiss her on or near the lips;
b. At approximately 10pm Stephen Howd held onto A's hand and kept it on or near his crotch area for about 5 seconds until she was able to release her hand from his grip;
c. Later in the same evening Stephen Howd approached A whilst she was conversing with others and put his hand around her, squeezing her against him and attempted to kiss her on or near her lips again; and/or
d. Later in the same evening Stephen Howd approached A and put his arm around her and placed his face uncomfortably close to hers.
Charge 4: Proved
Statement of Offence
Professional misconduct contrary to Core Duty 3 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, failed to act with integrity in that at Zenith Chambers summer party on 11 July 2014 he pestered B by his conduct towards her in that:
a. At approximately 11pm Stephen Howd took B by the wrist and pulled her towards him;
b. Shortly after this Stephen Howd grabbed B by the waist and pulled her towards him, placing his hands on the small of her back and placing his cheek next to hers, saying that they should dance "cheek to cheek" and then saying "no, crotch to crotch;" and/or
c. Later in the same evening he referred to B to her face as a "good girl" while poking her in the breast area of her chest and then kissing her on the cheek, near her mouth.
Charge 5: Proved
Statement of Offence
Professional misconduct contrary to Core Duty 5 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, behaved in a way likely to diminish the trust and confidence the public places in him or the profession in that at Zenith Chambers summer party on 11 July 2014 he pestered B by his conduct towards her in that:
a. At approximately 11pm Stephen Howd took B by the wrist and pulled her towards him;
b. Later in the same evening Stephen Howd grabbed B by the waist and pulled her towards him, placing his hands on the small of her back and placing his cheek next to hers, saying that they should dance "cheek to cheek" and then saying "no, crotch to crotch;" and/or
c. Later in the same evening he referred to B to her face as a "good girl" while poking her in the breast area of her chest and then kissing her on the cheek, near her mouth.
Charge 7: Proved
Statement of Offence
Professional misconduct contrary to Core Duty 3 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, failed to act with integrity in that at the Zenith Chambers summer party on 11 July 2014 he pestered C by his conduct towards her in that, at some point in the evening, whilst at the party, Stephen Howd got hold of the hands of C, made her dance and told her she looked "gorgeous" and attempted to kiss her.
Charge 8: Proved
Statement of Offence
Professional misconduct contrary to Core Duty 5 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, behaved in a way likely to diminish the trust and confidence the public places in him or the profession in that at the Zenith Chambers summer party on 11 July 2014 he pestered C by his conduct towards her in that, at some point in the evening, whilst at the party, Stephen Howd got hold of the hands of C, made her dance and told her she looked "gorgeous" and attempted to kiss her.
Charge 10: Dismissed
Statement of Offence
Professional misconduct contrary to Core Duty 3 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, failed to act with integrity in that at Zenith Chambers summer party on 11 July 2014 he pestered D by his conduct towards her in that:
a. Early in the evening, Stephen Howd put his hand on the shoulder of D in an attempt to make her dance; and/or
b. Later in the same evening Stephen Howd, on the stairs in chambers, stood very close to D making her feel uncomfortable.
Charge 11: Dismissed
Statement of Offence
Professional misconduct contrary to Core Duty 5 of the Code of Conduct of the Bar of England and Wales (9th Edition).
Particulars of Offence
Stephen Howd, a barrister, behaved in a way likely to diminish the trust and confidence the public places in him or the profession in that at the Zenith Chambers summer party on 11 July 2014 he pestered D by his conduct towards her in that:
a. Early in the evening, Stephen Howd put his hand on the shoulder of D in an attempt to make her dance; and/or
b. Later in the same evening Stephen Howd, on the stairs in chambers, stood very close to D making her feel uncomfortable."
Initially, Mr Howd was also charged with four other offences 2 of behaving in an unlawfully discriminatory manner by sexually harassing the complainants or otherwise treating them unfavourably by reason of their gender, contrary to Core Duty 8 of the Code of Conduct of the Bar of England and Wales (hereinafter "the Code of Conduct"). At a preliminary hearing, these charges were struck out because, even taking the prosecution case at its highest, it could not be established that his conduct amounted to unlawful harassment and/or unlawful discrimination contrary to the Equality Act 2010, which applies only in the circumstances specified, e.g. employment, provision of services, and in the case of barristers, the specific situations set out in section 47.
Originally, charges 1, 2, 4, 5, 7, 8, 10 and 11 alleged that Mr Howd "harassed" rather than "pestered" the complainants. The term "harassment" is defined in the BSB Handbook by reference to section 26 of the Equality Act 2010. In response to Mr Howd's submission that his conduct did not fall within the scope of section 26, the BSB successfully applied to amend the charges so as to remove the allegations of harassment, and substitute the word "pestering".
The statutory framework
The Courts and Legal Services Act 1990 designated the Bar Council as the authorised body for the profession. The BSB was set up under the Legal Services Act 2007 to
act as the specialist regulator of barristers in England and Wales. Its regulatory objectives derive from the Legal Services Act 2007, section (1). The BSB publishes the Bar Standards Handbook ("the Handbook") which contains inter alia the Code of Conduct, comprising the Core Duties and rules which supplement the Core Duties. "Outcomes" and "Guidance" on the Code of Conduct are also published.Pursuant to the Complaints Regulations,...
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