1. In practice as in life we regularly use language that we do not pause to define. For those who practise in the field of professional discipline, we speak of “professional misconduct”. Cast your eye down the list of the kinds of issues prosecuted by regulators and you will find a spectrum of offences from dishonesty down to the most technical or even footling breach of a professional code. Many regulators will assert that all of these are cases of “professional misconduct”. But if that is right, then we have systems of control that are based on strict liability where intent and motive are irrelevant. Thankfully, save in respect of breaches of the Solicitors Accounts Rules, no such system pervades. What is required is a working definition of “professional misconduct” that sufficiently ensures that the full weight of a disciplinary process is brought to bear only on the most serious cases and that less serious cases are dealt with in some other way, such as a system of internal advice-giving. That is surely the essence of “outcomes focussed” regulation.
2. There is a touchstone that has been developed in barrister disciplinary cases that can usefully and pertinently be applied across all of the professional disciplinary regimes. The touchstone is to be found in Walker v Bar Standards Board (2013) unreported, an appeal to the Visitors to the Inns of Court in which May LJ adopted and applied the Scottish test for professional misconduct.
3. In Howd v Bar Standards Board,  EWHC 210 at , per Lang J, a High Court appeal under section 24 of the Courts and Crime Act 2013, the author’s written submissions for Mr Howd about the effect of Walker were accepted and adopted as follows:
“In Walker v BSB PC 2011/0219, 19 September 2013, Sir Anthony May, the former Lord Justice of Appeal, sitting as a Visitor to the Inns of Court, considered the meaning of “professional misconduct” in an earlier edition of the Bar’s Code of Conduct which was in similar terms. He concluded that on a literal interpretation, any breach of the Code however trivial would constitute professional misconduct. He held that this could not be the correct approach, saying:
“11. …consistent authorities (including, it appears, other decisions of Bar Standards Board Tribunals) have made clear that the stigma and sanctions attached to the concept of professional misconduct across the professions generally are not to be applied for trivial lapses and, on the contrary, only arise if the misconduct is properly regarded as serious…….
“16. …the concept of professional misconduct carries resounding overtones of seriousness, reprehensible conduct which cannot extend to the trivial.”
4. The terms of vital importance in the search for a working definition that can be applied flexibly to all cases are, “serious” and “reprehensible”. Their precise philological inter-relation is a matter of debate. Returning to their Scottish origin, it is useful to recall Lord President Emslie in Sharp v Law Society of Scotland (1984) SC 129 at 134/5:
“There are certain standards of conduct to be expected of competent and reputable solicitors. A departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct’”
5. So, in Scotland, the test is the conjunctive one of “serious” and “reprehensible”. An alternative is to turn “serious” into the adverb “seriously”, so, “seriously reprehensible”, but it is submitted that this adds nothing. Since it is desirable that the test be capable of easy and formulaic application by decision-makers, many of whom will be non-lawyers, the test “serious and reprehensible” is perhaps to be preferred.
6. Two unreported decisions of Bar Disciplinary Tribunals in which the author defended both of the barristers concerned, applied the Walker test (pre-Howd). In both, the barristers were acquitted. In the first decision, BSB v S (2014), what was a technical breach of the old Code of Conduct by a barrister who declined to cooperate fully with the Legal Ombudsman’s investigation of him, was excused by way of a complete acquittal by a panel chaired by Mr Alan Steinfeld QC. The panel considered that the barrister had some considerable justification in requiring disclosure from the LeO before he replied to the complaint, rather than after the case officer had written her report.
7. In the second decision, BSB V C (2016), conducted after the coming into force of the BSB Handbook, a Panel chaired by Mr. William Rhodri Davies QC, had to consider the case of a barrister who had practised for 15 months without a practising certificate, which, prima facie, is a criminal offence under section 14(1) of the Legal Services Act 2007. C managed successfully to invoke the Walker principle by showing that the Bar Council’s online renewal system had been defective and had led to him wrongly assuming that he had paid his certification fee, when in fact he had not. This was not mere mitigation, but was held to be a complete defence.
8. It was noticeable in these cases that had the author acting for the defence not drawn the attention of the tribunal to the Walker test, the tribunal would have been none the wiser. BSB Prosecutors do not appear routinely to draw the test, or Walker, or Howd to the tribunal’s attention. This is ironic, since the BSB is able to prosecute those who do not draw adverse authorities to the attention of a tribunal: see, BSB Handbook, rC3.4. It is surely seriously reprehensible conduct not to draw the test of “serious and reprehensible” articulated in Walker and Howd to the attention of Bar disciplinary tribunals. It is submitted that this test should be cited and applied in every disciplinary case before the Bar tribunals.
9. The argument has been introduced by the author in other regulatory jurisdictions, most notably before the Conduct Committee of the Royal Institution of Chartered Surveyors. In RICS v Benjamin Mire (2015), all charges were dismissed on the basis of a submission by the author of no case to answer, which combined the Galbraith test (in Reg v Galbraith  1 WLR 1039), with a Walker formulation, as well as the RICS Conduct Committee’s own overarching discretion to find that there is no “liability to disciplinary action”. The question whether a surveyor is “liable to disciplinary action”, confers a free-standing discretion and enables a tribunal to acquit even if there is a technical breach of the Code of Conduct for Chartered Surveyors or RICS-regulated firms. It therefore accommodates the Walker / Howd test. Once again, prosecutors do not cite these cases without defence prompting, and since so many surveyors attend disciplinary trials without being legally represented at all, it is thought that they often fail to articulate their cases in a way that might lead to acquittal.
10. In MPTS/GMC, NMC, GDC and HCPC cases, the decision-maker has to grapple with the concept of “fitness to practise” (“FTP”), being a discrete stage of the disciplinary trial process. It is submitted that a breach of a rule that fails to reach a threshold of “serious and reprehensible” is one where fitness to practise may well not be impaired. The FTP part of the trial in medical disciplinary forums, like the “liability to disciplinary action” stage of RICS trials, amply accommodates an argument that the instant breach lacks serious reprehensibility to such an extent as not to impact on “fitness to practise”. Once again, what might be thought only to be mitigation at best, may well become the basis for a substantive defence to the instant charge.
11. The Walker /Howd test impacts on investigations as well as trials. Regulators regularly fail to test projected prospects of success according to a test of “serious reprehensibility”. They are frequently not asked to do so by those who advise professionals at the investigatory stage. Some commentators say that the Solicitors Regulation Authority tends to view the disciplinary world as one in which any breach of a code requires a sanction, in other words that the entire disciplinary regime is (or ought to be) one of strict liability, where gradations of intention, motive and basic human error are irrelevant.
12. This is a dangerous approach to professional discipline because it would mean that every single act of negligence for example, is not only actionable in damages, but should in parallel be prosecuted before a disciplinary tribunal. In reality, this is not what happens. Jurisprudentially, that must be because the only species of professional negligence that warrants a disciplinary prosecution is in respect of acts or omissions by professionals that are both “serious” and “reprehensible” in all the three pre-requisites of: (a) mental element, (b) deficient performance and (c) practical impact. This is reflected in the principles espoused by Jackson J. (as he then was) in R (Calhaem) v General Medical Council  EWHC 2606 (Admin). Not all kinds of negligence are “professional misconduct.”
In the most serious cases, it will often be pointless to make submissions about “serious reprehensibility”. But many disciplinary cases occupy a position at the equator of professional discipline. A case that has crossed that equator in the investigator’s eyes may not have crossed it by any great distance, if at all. It is in those cases that the invocation of the Walker / Howd test is likely to be of most significance. The deployment of such an argument will often be made in the face of strong objection (even threats of dire consequences, in the author’s experience) from the prosecutor. It requires courage and mettle to advance such points, but as can be seen, tribunals will give the issue serious consideration if the point is well taken, sometimes with positive results.
Marc Beaumont is a Legal 500 leading barrister in professional disciplinary law. He defends barristers, solicitors, surveyors, medical and many other professionals in such cases.
He can be contacted at email@example.com