Historical Parallels?

My real concern is that complaints are being made anonymously and then recorded. Neither announcement by the Bar nor the OLSC identify what safeguards will be in place for people against whom anonymous (and because of the anonymity – undetermined) complaints are made.

What is the purpose of the record? Who will have access to it? Will the list be consulted when someone is being considered for silk or appointment to the Bench? How does one know if one has had an anonymous complaint made against them? Will complaints like convictions become spent after a period? Can one inspect one’s file and apply to have the record expunged? What if the complaint is spurious or untrue and vengeful? If anonymous, who can say it was not made by another lawyer?

History has shown that in totalitarian regimes, to be denounced is to be guilty. The film, The Lives of Others, set in East Germany during the Cold War, depicted how the Ministry for State Security, known as the Stasi, spied on its citizens and relied on anonymous reports. Such reports could deny one a promotion, a new flat or an exit visa, without a hearing. Those who betrayed others could have been a jilted or unrequited lover, a work colleague competing for a new position, a jealous neighbour or an officious person in error. All the same sort of people who could, without their identity being known, report a barrister to the Bar or to the OLSC.

 “Knowing One’s Accuser”

If a complaint is made and is to be retained as an official record, surely the accused must have some rights? What happened to the presumption of innocence, the burden of proof on the accuser or prosecutor, the standard of proof in the High Court’s Briginshaw v Briginshaw,[2]principles of natural justic, knowing one’s accuser, and the time, manner and place of the allegation and the ability to defend one’s reputation? All fundamental concepts any lawyer would rely upon to defend a client but apparently not efficacious for a barrister whose name is placed anonymously on a secret list.The fact that the responsible officer within the apparatus of the Bar is entitled “the Sexual Harassment Officer” places the discovery of sexual harassment as the pre-eminent role of the position. Such a person may be tempted to highlight that purpose above all else and be intent on investigating that mischief as having arisen and being accepted.

I have been critical of this Bar Council for a number of years which seems to lack the diversity of thought which it proclaims. However, these initiatives run contrary to the rights of the individual which we as lawyers ought be dedicated to protect.

Of the many crazy things the Bar Council has done, sitting as Philosopher Kings and Queens, this is the craziest.