Guidance for those involved in reports of harassment

1. This document is intended to provide practical help for all those involved in reports to the Bar Standards Board (“the BSB”) which involve allegations of harassment, including sexual harassment.  We take all reports of harassment very seriously. We know that anyone reporting harassment, whether or not they are the alleged victim, may well be feeling distressed and our staff are trained to handle enquiries and reports sensitively.

2. Section 26 of the Equality Act 2010 defines “harassment” as relating to unwanted conduct in relation to a protected characteristic (eg age, gender, sexual orientation etc) but the BSB requires that any form of harassment should be reported including bullying. We see harassment as including any behaviour towards an individual which they consider to be offensive, intimidating, malicious or insulting, whether or not it is related to a protected characteristic.   We see “sexual harassment” as including all forms of unacceptable behaviour of a sexual nature including harassment, sexual violence, sexual assault and sexual misconduct.

3. We refer in this document to the person who is alleged to have been harassed as the “alleged victim” and the person who is alleged to have carried out the harassment as the “alleged perpetrator”. In most cases that we deal with, the alleged perpetrator is a barrister but in certain circumstances the BSB also has regulatory jurisdiction over other individuals, such as clerks and practice managers who work in chambers. 

1. When the information a person is providing indicates that there is ongoing violence, harassment, or any other potential safeguarding concerns, our staff will inform the individual that they can contact the police if they require protection or want to report a crime. If it is appropriate, we will check whether a caller is safe before continuing to speak to them and we might direct them to specialist non-legal support services (eg Refuge) who may be able to support them in making a report to the police.

2. If staff receive a report from a third party that a child (or other person with a vulnerability, such as a learning difficulty) has been abused, or if they receive information that the abuser has current contact with children (or people with vulnerabilities), there may be a safeguarding concern which we may need to report to the police if this has not already been done, or if the person making the report indicates they are reluctant to do so.

3. We recognise, however, that many of those who report harassment, particularly sexual harassment, to the BSB are very reluctant to become involved in making a report to the police because of the wider implications this could have for their relationships, and career, at the Bar. If a report of harassment contains evidence which, if proved, could amount to a criminal offence our staff will always ask whether the person has reported the behaviour to the police and let them know that if they would like to report to the police at any point they should do so.

4. If there are no safeguarding issues, the BSB will not normally take the step of reporting the matter to the police without the alleged victim’s agreement and nor will we disclose information to the police about any alleged conduct without a formal court order for disclosure. Even then we will seek to ensure that any personal information about third parties not covered by the order is removed. Depending at which stage of the process a report to the police is made, the regulatory case may need to be put on hold pending the outcome of the police proceedings.

1.All incoming reports are assessed by our Contact and Assessment Team. Our aim is to ensure that the reports are reviewed by the Head of that team within five working days. We prioritise the assessment of reports about harassment so, for example, we try to ensure that phone calls are returned as soon as possible. We also aim to ensure that the same Assessment Officer remains the point of contact for the case throughout the initial assessment stage.

2. If the initial information has not been provided by the alleged victim, or further information is needed from them, we will ensure that any contact with the alleged victim is handled sensitively and only by staff who have training and experience of dealing with vulnerable witnesses.

3. Assessment Officers will explain that the BSB will keep the alleged victim’s identity confidential during the initial assessment process, and that the alleged victim will be informed and consulted at each stage of the initial assessment process.

4. We can receive anonymous reports but, in order to act on the information provided we may have to consider whether we can do so without disclosing the source of the report.

Investigation

1. Once a report has been through the initial assessment stage, we will either write to the alleged victim to explain why we have not found evidence of a potential breach of the BSB Handbook and why we will not therefore be taking any further action or the report may be referred on for a formal investigation to the Investigations and Enforcement (I&E) team if we have found evidence of a potential breach. Again allegations of harassment will be handled sensitively and will be allocated to legally qualified senior members of the team, who have had training in dealing with vulnerable witnesses. 

2. The Case Officer will normally contact the alleged victim prior to formally accepting a case for investigation to inform them of the referral, to confirm that they are content to co-operate with the investigation and to let them know that at that stage it will be necessary to reveal their identity to the alleged perpetrator. The Case Officer will explain the investigation process so that the alleged victim is clear about what is going to happen and also to ensure that they are aware of the relevant support available. The alleged victim will also be reminded that they can appoint someone to act as an intermediary during the investigation if this would assist them in participating in the process. If they choose to do this, the appointed intermediary will be provided with information about the investigation process and, if the alleged victim so wishes, all further communications will be sent to the alleged victim via the intermediary.  

3. Once a case has been accepted for investigation, the Case Officer will draft an “Allegation” document setting out the potential breaches of the BSB Handbook.  This will be sent to the alleged perpetrator for a response to the allegations. The alleged perpetrator will not normally be informed of the investigation until the allegations are ready to be sent. Sending the allegations is the first formal step in the investigation. The Case Officer will then gather any other relevant evidence.  This is very likely to include obtaining a formal witness statement from the alleged victim to ensure that we have a full and accurate account of what is alleged to have occurred.

4. The I&E Team aim to conclude investigations within 26 weeks. Given the stressful nature of harassment cases for all involved, the BSB will strive to prioritise the progress of such cases and keep the alleged victim and the alleged perpetrator regularly updated on progress. However,  investigations of harassment may take longer than the 26 weeks, particularly where sensitive statements from a number of witnesses are required. We also recognise that alleged victims and other witnesses may sometimes need additional time to agree and sign witness statements.

5. We will contact vulnerable witnesses in the most suitable manner appropriate to them, whether by phone, or via email/letter, and will offer an in-person or virtual meeting in order to obtain witness evidence. If a face-to-face meeting is arranged, we will endeavour to have two members of the I&E team at any initial meeting with a vulnerable witness or alleged victim, to provide additional support to that witness, and so that the witness has a known second point of contact if the named Case Officer is not available.

6. At the end of the initial meeting Case Officers will check that the witness has someone to talk to or is aware of any relevant support organisations. The Case Officer will confirm the next steps and likely time frames for the completion of the statement and the investigation.

7. Evidence of impact on the alleged victim – unlike a criminal court the disciplinary tribunal process does not usually include the admission of a separate victim impact statement, so we seek to ensure that any statement to be used as evidence in a harassment case includes a section that covers the impact on the alleged victim.

8. Evidence and disclosure (investigations and disciplinary action) – at the investigation stage, the Case Officer will disclose to the alleged perpetrator all information that is relevant to the allegations that have been made. At the disciplinary stage the requirements are more rigorous and any evidence which supports or undermines the BSB’s case must be disclosed, this may include draft statements or emails from/to a witness or notes of discussions with witnesses.

Outcomes of an investigation

9. Post investigation decision – once the Case Officer has gathered all the relevant evidence or established that relevant evidence is not available, the investigation is concluded. The Case Officer will then carry out a post-investigation assessment of the case and unless the investigation clearly shows that there is no evidence of the alleged harassment, the case will be referred to an Independent Decision-Making Panel (IDP) for a decision on the outcome of the investigation. 

10. Referral to an IDP – IDPs that consider enforcement cases are made up of five lay and barrister decision-makers with a lay majority. IDPs can dismiss allegations where there is no, or insufficient, evidence of a breach, or refer for disciplinary action usually to an independent disciplinary tribunal. They can also settle less serious breaches of the BSB Handbook by imposing a warning or a low level fine (known as an administrative sanction) or using the Determination by Consent procedure but this is very unlikely in cases where there is evidence of harassment.

11. Communication of post investigation decisions - the post-investigation decision will be communicated to the alleged perpetrator and the alleged victim and any other witnesses. If the case is referred to a Disciplinary Tribunal, we try to ensure that the same Case Officer remains responsible for the case. The Case Officer will notify witnesses if they will be asked to give evidence.

12. Staff and IDPs are also able to refer cases to our Supervision team where there are wider concerns about the way the chambers is operating or has responded to the harassment incident (see section 5 below)

Disciplinary Tribunals

13. In nearly all cases, where there is evidence of harassment, the likely outcome of an investigation will be that the matter is referred to an independent Disciplinary Tribunal to determine charges of professional misconduct.   

14. The Bar Tribunals and Adjudication Service (BTAS) is responsible for appointing and administering Disciplinary Tribunals and its tribunals are independent of the BSB. The BSB is responsible for bringing charges of professional misconduct against barristers, which BTAS tribunal panels then consider and decide on the outcome. 

15. BTAS tribunal panels are made up of both lay and barrister members. Tribunals are held in public but if the alleged victim or any other witness wishes to have their name anonymised, an application can be made for the witness’s details to be anonymised. The decision on whether to grant an application for anonymisation is for a Directions Judge or the Tribunal to make.  The Tribunal will seek to ensure that vulnerable witnesses are as comfortable as possible and can give their best evidence.  So, for example, witnesses may be allowed to give their evidence behind a screen or by video link.

16. The BSB will always be represented during Tribunal proceedings by independent counsel and for harassment cases, the BSB will only instruct counsel with vulnerable witness experience. 

17. We will always try to ensure that the alleged victim, as well as other witnesses and anyone the alleged victim would like to act as intermediary during the proceedings, are given clear information about the stages in the disciplinary proceedings, the likely timescales for conclusion of the proceedings and when and how they will be involved. We will also keep them regularly informed of progress and informed as soon as possible of any potential delays.

18. It is essential that witnesses feel as comfortable as possible about giving evidence at the hearing. We therefore also give the alleged victim (and potentially other relevant witnesses) the opportunity to have a pre tribunal meeting with the BSB representative before the hearing.  This allows them to ask any questions of counsel about the disciplinary process. On the day of the hearing, or before, witnesses will, if the hearing is being held in person, be given an opportunity to view the Tribunal room and familiarise themselves with the layout. If a hearing is being held remotely, the Case Officer will take the witness through the remote hearing process and the platform that will be used for the meeting as well as advising them how they will be called to give evidence on the day.   

19. If a Disciplinary Tribunal finds the charges proved, the sanctions imposed are a matter for the tribunal having regard to the facts of the individual case and the BTAS Sanctions Guidance. The current BTAS Sanctions Guidance indicates a starting point of at least 12 months suspension for proven charges of harassment.  Information about BTAS and how its tribunals operate can be found online.

1. As well as dealing with reports of harassment by individuals, the BSB also has the power to take action where a report indicates that there may be a wider problem. The Supervision Team supervises barristers, chambers, BSB entities, and organisations that deliver Bar training courses and pupillage, by working with them to improve their regulatory compliance with the BSB Handbook and with our authorisation frameworks, and to manage risk. More information on our team and how it operates can be found on our website.

2. Cases of harassment might initially come to the attention of staff in the Supervision Team as a result of a referral from our Contact and Assessment Team, or occasionally via a report made directly to the team. Allegations of harassment by a regulated individual will typically be referred to I&E, but if there has been a wider failure in the organisation to deal with the issues raised and manage reports in the way we would expect, it may be appropriate to involve Supervision as well.  Referrals can therefore be made to both teams simultaneously, or only one, depending on the facts of the report, and the Supervision team may also refer cases to I&E at any point during their handling of the case. 

First contact

3. All cases referred to Supervision are assigned to an Officer within three days. On allocation, the Officer will be made aware of whether the case must be handled in a particular way eg calling at a particular time on a personal number. All Supervision Officers have received training in dealing with vulnerable witnesses. 

4. If we need to contact the alleged victim or a witness to the incident, we are mindful that the person may be in some distress, and we will therefore endeavour to contact them within five working days of the case being allocated, or sooner if reasonably possible. This will be done before speaking to the chambers, entity or anyone else involved. On making contact, we would generally:

• explain the role and remit of the Supervision team as distinct from other teams at the BSB;
• explain that we are able to refer any information obtained to other teams including I&E for further action ;
• explain what action we can take such as a visit to a chambers or discussion with relevant persons;
• request any further information that might be relevant and explain how this will be recorded internally;
• signpost if appropriate to the organisations set out in the Annex to this document and, if applicable, remind the alleged victim that they can refer matters of harassment to the police;
• discuss the expected timings of taking any Supervisory action.

Our response

5. Our Supervision Strategy and Framework sets out the range of regulatory responses we can take. The action we take is, in the main, directed at the general operation of the chambers, entity, sole practice or training organisation, and we do not therefore come to a “finding” as such on the allegations made.

6. In more serious cases, we arrange a visit with the relevant organisation, which may be conducted by video teleconference or in person. We may ask to speak to a range of people such as the Head of Chambers, Equality and Diversity Officer or Head of Pupillage, in order to obtain further information to ensure the internal mechanisms for addressing issues of harassment are in compliance with their regulatory obligations. For harassment cases, we would typically be concerned about the culture of the chambers or organisation, along with their policy and processes for handling reports of this nature.

7. Once the review has concluded, we aim to provide a written report to the organisation within five working days on the areas we have reviewed. This is confidential to the organisation and sets actions we require them to take within a set timeframe. Actions may include, for example:

• amendments to their anti-harassment policy and/or changes to their processes of handling reports;
• training on harassment or other associated areas around Equality, Diversity and Inclusion; and
• specific actions relevant to the case in hand, such as ensuring the alleged perpetrator and alleged victim are being clerked separately and/or are being supported appropriately.

8. Very often issues may emerge in associated areas in which we may then also set actions. Such areas, for example, might include how pupillage is being administered, or the fair allocation of work. We may also conduct a follow-up visit.

Timings and potential impact

9. Where the report has also been referred to our I&E team, the appropriate action may be to await the conclusion of their investigation before any regulatory action is taken by Supervision.

10. There may, however, be cases where the regulatory risk is such that it would be inappropriate for Supervision to postpone proceeding with any supervisory action. For example, there may be concerns about the safety or wellbeing of the alleged victim such that it is decided that immediate action by Supervision is appropriate to address the position in chambers. The report may also highlight other serious concerns about the way a chambers or entity is operating, and we may therefore agree that we should conduct a Supervision visit despite the ongoing investigation.

11. We always consider the impact that our involvement may have on the alleged victim, and whether it would be appropriate to adjust this accordingly to ensure that they are not put at risk by the way in which Supervision action is conducted, or the timing of it. For example, if the report is from a pupil about harassment, we may agree to postpone any action until they have completed their pupillage or transferred to another organisation. This will depend on a number of factors including the level of risk, the seniority in chambers of the alleged perpetrator and the influence the alleged perpetrator could have on the progress of the individual’s pupillage. 

12. When a Supervision visit is planned and the person who made the report and/or the alleged victim works within the chambers or entity, they will usually be informed of the date of the visit so they can choose whether to be in chambers, and so that they are prepared for any further developments that may take place as a result of our visit. We would usually inform the alleged victim about any actions we have set that directly relate to them. However, general updates on the action we have asked chambers or the organisation to take to improve their regulatory compliance are not provided to the alleged victim, others who have raised issues, the alleged perpetrator, or any other interested party. This is because Supervision action is in the main directed at the operation of chambers or organisation as opposed to acting as a mediator or resolving individual disputes. 

Reports relating to harassment may also be referred to the Authorisations Team if they raise concerns regarding a pupil supervisor, or about a pupillage or vocational Bar training provider. Authorisations staff will then consider whether an individual should be prohibited from acting as a pupil supervisor, or whether authorisation to provide training should be removed or conditions imposed.

Given the nature of harassment cases, it is not uncommon for our Contact and Assessment Team to refer cases at the same time to multiple teams. We aim to provide a collaborative and holistic approach so that each team can do its work effectively and that all those involved have a coherent and, as far as possible, seamless experience.

1. We recognise that cases involving reports of harassment, and especially sexual harassment, are likely to have a significant emotional impact on everyone involved with the regulatory process.

2. BSB staff will always seek to explain clearly to those providing information to us that whilst we will provide support in terms of explaining the process and assisting them through it, we are not in a position to provide emotional or psychological support, although we will try to help them whenever we can to access such support.  Staff will refer individuals to specialist legal and non-legal support services listed in Annex 1 as appropriate, at the earliest available opportunity.

3. We recognise also that the person against whom the report is made is also likely to be worried and anxious about the regulatory process. Again we will seek to ensure that they are kept informed of the process and we will also remind them of options for representation or support such as the Bar Mutual Insurance Fund (BMIF), the Bar Complaints Advisory Service (BCAS), their chambers, a colleague, their Inn or the Bar Council’s Wellbeing at the Bar portal. 

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