Kevin Farquharson v Bar Standards Board ruling is disappointing

I have been saddened to read the recent High Court decision in the case of Kevin Farquharson v Bar Standards Board.

The decision of Mrs Justice Heather Williams seems not yet to be publicly available, but it has been reported in the legal press that Farquharson, who had been disbarred by The Bar Tribunals & Adjudication Service last October for professional misconduct related to sexual assault of a junior colleague, of which he had been convicted, has had his sanction reduced to two years’ suspension from practice.

The reduction in sanction appears to be related to there being ‘clear mitigating factors sufficient to depart from a starting point of disbarment’. Without sight of the High Court’s judgment it is difficult to comment on this.

However, this appears to be a surprising decision when there has been a conviction for a serious sexual offence; guidance in the BSB Handbook on Sanctions quoted by the Bar Tribunals & Adjudications Service in their decision states that on a conviction for a serious sexual offence where there is a custodial sentence (Kevin Farquharson was given a six-month suspended sentence) the starting point is disbarment unless there are clear mitigating factors which indicate that such a sanction is not warranted.

The Sanctions Guidance in the BSB Handbook in general could be argued to be unduly lenient in this area: otherwise where there is a conviction for a sexual offence (i.e. no custodial sentence) the starting point is a “medium level suspension” that being three to six months. For inappropriate sexual conduct in a professional context, the starting point is a medium level fine to a short suspension.

It seems to me that this fails to recognise the serious negative impact such conduct can have on the individuals affected by it and the disregard and lack of respect often inherent in such behaviour, which has no place among members of trusted professions.

The case of Kevin Farquharson has drawn parallels with that of former Freshfields Bruckhaus Deringer partner, Ryan Beckwith, although when you drill down into the facts of both cases, they are in fact quite different.

The sexual touching by Farquharson was clearly non-consensual. The Memorandum of his Conviction records that the reasons for custody were “prolonged and predatory behaviour with a professional work colleague after she made her thoughts absolutely clear, in drink with far-reaching emotional consequences for the victim”.

In contrast, it was not part of the SRA’s case in Beckwith that the sexual “encounter” took place without consent. This in my view was a key reason why the High Court reversed the conclusions of the Solicitors Disciplinary Tribunal (SDT) that Beckwith had contravened the SRA Principles, along with the Tribunal’s rejection of the allegation that Beckwith had acted in abuse of his position of seniority or authority. After the SDT had concluded that the events were not an abuse of authority, it can be seen why the High Court found that the charges against Beckwith had become ‘untethered’ from the standards set out in the SRA Handbook and the ethical requirements of the solicitors’ profession.

It seems to me that the facts of Ryan Beckwith’s case were quite distinct. Although he was her supervisor and appraisal partner, the complainant had resigned from her job and had secured employment elsewhere – the events that gave rise to the complaint took place at and after her leaving drinks. It was not her evidence that she felt obliged to remain in the pub with Beckwith as he was her boss, or that she had continued to drink as Beckwith was buying drinks for her as her boss. Nor was it her evidence that the sexual activity that had taken place was by virtue of that fact that Beckwith was her boss.

Unwanted targeting of a junior colleague will more often involve an abuse of position. Care also needs to be taken properly to analyse the particular situation, as hierarchies and power structures in workplaces may be subtle, but nonetheless pervasive, creating the opportunities for physical proximity and exercise of authority, which can then be abused.

The Solicitors Regulation Authority is currently consulting on proposed changes to its rules to introduce explicit obligations in the Codes of Conduct for both firms and individuals to treat colleagues fairly and with respect, and not to engage in bullying, harassment and unfair discrimination.

It was right that the Bar Tribunals and Adjudications Service found that Farquharson’s conduct lacked integrity and was likely to diminish the trust and confidence which the public placed in him or the barristers’ profession – and was not confined to inappropriate conduct in the sphere of his private life. Farquharson had also aggravated his misconduct by sending messages both to the woman he had victimised and another colleague asking them to lie about his whereabouts on the evening in question. The Bar Tribunals and Adjudication Service heard that this added to the woman’s distress.

Such cases as these inevitably focus on the behaviour of the alleged perpetrator and what should happen to him (for it most often is a him) if there is a misconduct finding. The complainant’s identity is protected by anonymity, which is completely appropriate but often means that in the reporting of the case less is said about how they have been affected by the events.

I know from my own work dealing with cases for sexual abuse and harassment in the workplace for clients such as ‘Claire’ that the impact of such abuse can be damaging and persistent.

The situation of the complainant in the Farquharson case reported in the Bar Tribunals and Adjudications Service decision is not atypical. The decision reports that, in her Victim Personal Statement for the criminal proceedings, “A” described the way she was affected by the incident and all that followed. As the Respondent was a senior colleague, she was worried that there would be issues. For the first few weeks, she was scared to go to work. The investigation brought another level of stress. She took time off work for significant periods. Her self-confidence was damaged, and she felt like giving up the Bar. She required counselling to help her through this difficult period.

I wonder what has happened to her since? I wonder too how the complainant in the Beckwith case is doing?

I have represented survivors of sexual assaults in diverse workplaces such as healthcare and legal professions and a school and my clients have not been able to manage a sustained return to work afterwards or, if they have, to perform at the same level as before.

It is particularly difficult if the perpetrator is able to go back to work and there is a risk that the complainant may have to interact with them.

Often complainants in these cases in my experience are concerned that the perpetrator’s behaviour is indicative of their underlying attitudes and that they may habitually overstep acceptable boundaries and attempt to exploit others, meaning that others may be at risk from them.

A feature of these cases is that the psychological injury to the complainant can be exacerbated and prolonged by the response of their employer, and other investigations. Delays in internal and external investigations can be particularly difficult, as can the sense from the complainant’s perspective that they are having to ‘drive’ the process. If the sanction is then seen as not commensurate – both to the original conduct and the stress that the complainant has to go through after reporting – this can be really devastating.

I do not think that we should take from these recent reported cases that sexual harassment is any less of a regulatory or disciplinary priority.

Organisations should have in place policies both to protect the dignity at work of employees against harassment, and understood procedures for reporting and dealing with any allegations fairly and swiftly, keeping those affected appropriately informed throughout.

We are going through a period of societal change where toxic cultures and behaviours are rightly being called out. Initiatives such as the Everyday Sexism Project and Everyone’s Invited (in the context of younger people) have helped by providing a means for those affected to tell their stories safely. It is important that the legal system supports this by recognising the seriousness of these cases, including the impact on survivors and victims.