Examine the proposal to prohibit sexual relations between barristers and trainees or pupils, exploring both its rationale and implications for professional culture. (The Guardian)

By Emma Fielding, Barrister, the 36 Group

Harriet Harman’s Independent review of bullying, harassment and sexual harassment at the Bar has sent shockwaves through the profession. In general the findings and recommendations have been well received, however inevitably some have proved more controversial than others. The next step will be to see whether the suggested changes are in fact implemented in full, watered down or not implemented at all.

The serious misconduct finding and subsequent disbarment of former King’s Counsel Jo Sidhu is one of the factors which has led to recommendation 11, dealing with aspiring barristers and pupils. The BSB summarised this case as below:

The tribunal found that Mr Sidhu had acted in a way likely to diminish the trust and confidence which the public places in him or the profession, in that, on or around 26 November 2018, whilst in a position of trust, he invited the student to stay overnight in his hotel room and in his hotel bed which invitation was inappropriate and/or unwanted and initiated sexual contact which was found to be inappropriate.  

Consequently recommendation 11 states that there is a need to prevent misconduct towards aspiring barristers, juniors and employees. It is suggested that it should be serious misconduct for a member of chambers to have sexual relations with a mini pupil, pupil or someone conducting work experience. Similarly someone in the position of authority such as an advocacy trainer for the Inns of Court or a circuit leader would be prohibited from sexual relations with associated pupils or students.

This suggestion has received some pushback from the profession, who feel that to implement such a recommendation would amount to policing adult relationships between consenting adults. For example on ‘X’, Trusts specialist barrister Barbara Rich, posted:

Recommendation 13 c is ludicrous, certainly as far as pupils are concerned. No one does pupillage younger than their early 20s, many significantly older. These adults shouldn’t be prohibited from sexual relationships within chambers

This approach however fails to take into account the power imbalance that exists, regardless of ages, although of course typically pupils will be younger than other members of chambers. While a prospective couple may have the inconvenience of waiting until the end of pupillage before embarking in a romantic relationship, realistically this is only likely to affect a small number, whereas a prohibition will safeguard a much wider group from potential harm.

In a talk presenting the findings of her report, Harriet Harman emphasised that tenants hold the future of a pupil in their hands. If there is no line drawn in the sand then if a pupil is pressurised for sex by a tenant or someone senior at their chambers, they will be afraid to rebuff them for fear that any embarrassment or offence caused by their rejection will be held against them. She also noted that such a prohibition would bring the bar in line with other walks of life such as universities or medical professions. She ended by noting that that sexual predation should be career ending – for the perpetrator and not the victim.

In some professions there is a disclosure regime, namely that if a sexual relationship does take place, it should be disclosed to ‘HR’ or the equivalent. This however does not necessarily protect a pupil from unwanted advances and may simply add to a feeling of embarrassment and discomfort or create pressure to formalise the relationship.

A full ban on sexual relationships between tenants and pupils has been welcomed by some corners of the profession. Anneka Jenns, who gave evidence in Jo Sidhu’s misconduct hearing where she described his predatory behaviour towards her after meeting her at a networking event for aspiring lawyers, highlighted that ‘Jo Sidhu’s behaviour was known by some of his closest colleagues who “explained away” his behaviour under the guise of them being consensual relationships. Consent is an incredibly difficult thing to grapple with where there is such a power dynamic at play. A full ban leaves no room for excuses.’

Similarly Dr Charlotte Proudman, a top family barrister and longtime campaigner for women’s rights, is of the view that the profession must modernise, adding that in order to protect women and girls coming to the Bar, there must be a no tolerance approach. This is the only way that we can make the Bar a welcoming and safe place for all who wish to join it.

It remains to be seen whether Harman’s recommendation in this area will be adopted, but it would certainly send a message, that we are listening to victims and making tangible changes to the way that chambers operate to put an end to exploitation for good.

Emma Fielding, Barrister, the 36 Group