CD v MD
[2024] EWHC 118 (Fam)
Robert Kearney v The Bar Standards Board
29 February 2024
[2024] EWHC 924 (Admin)
High Court
A barrister was disbarred. He appealed, saying the judges who decided his case were biased because of an email one of them sent before the final hearing. The email showed they'd already decided he should be disbarred. The court agreed the email showed bias and allowed the appeal, meaning the case will be reheard by different judges.
Key Facts
- •Appeal against disbarment of barrister Robert Kearney.
- •Two separate cases involving allegations of sexual harassment.
- •Recusal application based on alleged bias of the Bar Tribunals and Adjudication Service (BTAS) panel.
- •Email from HHJ Carroll (BTAS Chair) to Green LJ (Inns of Court Chair) expressing concerns about a regulatory lacuna and the appellant's conduct.
- •Appellant argued apparent bias due to the email's content suggesting pre-judgment.
Legal Principles
Test for apparent bias: Would a fair-minded and informed observer conclude that there was a real possibility/danger that the tribunal was biased?
Porter v McGill [2001] UKHL 67; Re: Medicaments case
The fair-minded observer is not unduly sensitive or suspicious.
Helow v Secretary of State for the Home Department [2008] UKHL 62
Where there are real grounds for doubt as to a lack of bias, it should be resolved in favour of recusal.
Civil Procedure Rules, Part 1.1, paragraph 1.1.3 (editorial notes)
Outcomes
Appeal allowed on ground 1 (recusal).
The email from HHJ Carroll demonstrated apparent bias. The judge found that a fair-minded observer would conclude there was a real possibility the panel was biased, having formed views in private before hearing evidence and submissions on mitigation. This was not simply a provisional view expressed in an open hearing.
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