Ethical Pedestal

With that in mind, I have chosen a couple of relatively recent cases resulting in the disbarment of a barrister as examples of the kind of rule-breaking that evidently takes place all too frequently: Case No. 1 is that of Michael Richard Stannard, a barrister from Middle Temple called to the Bar in July 1973.

In December 2003, Mr Stannard was disbarred at a Bar Council Disciplinary Tribunalwhen he was found in breach of Paragraph 201(a)(i) of the Code of Conduct - "... a barrister practises as a barrister if he supplies legal services, and in connection with the supply of such services he holds himself out or allows to be held out as a barrister"42.

It transpired that Mr Stannard had engaged in dishonest conduct having been convicted of cheating the public revenue by reason of his involvement in a company tax avoidance scheme. He was sentenced to four and a half years imprisonment, with both his conviction and appeal being dismissed43.

At the Court of Appeal (R v Michael Richard Stannard (2005) WL 2802338)44 before Lord Justice Pill, Mr Justice David Steel and Mr Justice Pitchford on 1 November 2005, it was held that the trial judge (His Honour Judge Fingret), had correctly found Stannard to have a controlling interest in two companies which operated a purchase scheme whereby one company with unpaid corporation tax liability (but in possession of the funds to meet that liability) was targeted for acquisition by the other company.

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Steps were then taken to reduce the tax liability of the first company by false debenture documents which purported to show that substantial sums had been subscribed for and the interest on them paid in advance.

By extinguishing or reducing the corporation tax liability, any purchaser of that company would obtain a significant financial advantage.

The scheme, which had been entirely devised by Stannard, and totally under his control, operated between 1 January 1993 and 31 October 1997, and claimed a deduction against profits for interest paid in advance (including the debenture interest) from one company to the other, when in truth no such transactions had taken place. The net result of all this dealing was that Stannard obtained a benefit for himself of  3,099,030 as a result of cheating the public revenue.

Mr Stannard was sent to prison for four and a half years on 9 February 2001, and his estate stripped of what assets could be recovered. However, the Bar Council, acting upon its own archaic rules did not choose to immediately disbar him. While it is true that it could be an awkward hindrance to a practising barrister to be detained at Her Majesty's pleasure, Mr Stannard was not actually disbarred until he had been released and only then after a disciplinary tribunal had convened.

It would be hard, even for the most biased observer, to apply any of the theoretical ideas of Deontology to the actions of Michael Richard Stannard. There was no consideration whatsoever for his duties and the rights of others in his actions, indeed, the only 'maximisation of good' in the mind of Mr Stannard was that of his own bank balance. Gone was any hint of his obligation to do the right thing, and tell the truth as a matter of duty. And yet, this was a man who, since 1973, had performed his duties as a barrister without blemish.

For twenty years, Stannard acted wholly within the boundaries of his morals and principles upholding an ethical duty to the public, the Bar and the court. What could possibly change a man so dramatically that even when in court and his ill-gotten gains fully discovered, he still tried to lie his way out of his obligations by denying that certain assets (a Cessna aircraft, a house in Godalming, a flat in Switzerland and various benefits from an offshore trust46) were actually his own?

Case No.2 is that of John Paul Temple, called to the Bar in July 1998. Mr Temple was disbarred following a Bar Council Disciplinary Tribunal on 12 April 2006, for being in breach of Paragraph 301(a)(i)47 and Paragraph 901 [professional misconduct] of the Code of Conduct48. It transpired that Temple, who had taken up the law after his police career had ended when he had been beaten up by car thieves, had been downloading vast amounts of child pornography over a period of time, some of it featuring girls as young as ten months old.

When police examined Temple's computer following a raid at his home, they discovered 3,769 images, most of which had been viewed several times; and while some two-thirds of the collection was deemed to be of the least serious type of paedophiliac image, some 382 were of the most serious type. Temple had then distributed 491 such images to other members of a 1,300-strong paedophile ring.

Appearing on 5 January 2005, before Mr Justice Henry Globe at Liverpool Crown Court on 34 counts of possessing and distributing child pornography, prosecution barrister Damian Nolan said that Temple: "...knew it was a crime, but did not give it any thought". Temple, who is a married man and has four children of his own, explained that he had suffered serious head injuries as a result of his encounter with the car thieves in 1992, and been forced to retire from Northumbria Police. Temple was described in court as having been "... a diligent and hard-working police officer and barrister, who showed enormous effort and obvious pride in his work".

Defence barrister Robert Woodcock described Temple as a "ruined man", adding "...every career that this man has pursued is in tatters". Detective Sergeant Keith Gilfillan of Durham Police's Vulnerability Unit said outside court: "With his experience as a police officer and a barrister, Temple may have thought that he knew enough not to be caught and could make himself above the law". John Paul Temple received concurrent sentences of two years for possession of specific indecent images of children, two years and eight months for distributing indecent images, and two years for possession of a further 3,753 indecent images49.

Most normal, decent people find the actions of paedophiles utterly repugnant at the best of times. They would be incredulous to discover that a barrister should have such tendencies, and one can only begin to imagine the kind of treatment that Mr Temple would receive in prison from his fellow inmates, especially those with children, when they discovered he was a barrister and a former police office making and distributing indecent photographs of children. Yet these transgressions are by no means isolated incidents, as the example of Case No.3 demonstrates.

Rupert John Massey was a barrister called to the Bar in July 1972. He was disbarred following a Bar Council Disciplinary Tribunal on 19 January 2006, for being in breach of Paragraph 901 of the Code of Conduct50. Mr Massey had a long history of conduct unbecoming to a barrister: between 1971 and 1978, he engaged in various activities with other males resulting in his conviction before the Crown Court in Wolverhampton on 7 December 1999, for 13 offences of Indecent Assault on a male51.

He was also convicted at the same time52 for an additional three offences of Indecent Assault on another male between 1981 and 1983. One could argue that the findings in Case No. 1 were nothing more than the age-old human struggle between temptation and greed. Richard Stannard, despite his past, his principles, his morals and ethics, simply saw an opportunity for huge financial gain and succumbed to the lure of millions of pounds.

It is true that he cast off his ethical principles in the process, but this is somehow forgivable because any of us, given the same set of circumstances and the promise of untold riches, might also be tempted in the same way - it was a nothing more than a weakness of human nature. However, there is no place in ethics for paedophilia or indecent assault, so where is the reasoning for John Temple and Rupert Massey? Temple and Massey did nothing to consider the rights of others, much less the oath they had taken when called to the Bar.

If we apply a Kantian view to their actions, the dichotomy of reason and morality becomes all the more apparent: both ignored the 'Categorical Imperative', the fundamental demand which Immanuel Kant said determines the choice of principles on which to act, and replaced it with the 'Hypothetical Imperative', which only has force if we have certain desires and inclinations, and then act upon those instead53.

Their personal needs took precedent over the underlying deontological test on which we are all supposed to act i. e.according to whether they be universal laws (such as the Bar Council Code of Conduct for example), or the laws of nature. Therefore, it would seem that the simple process of acting according to one's own definition or interpretation of duty, or, indeed, even the simple determination of what is right and what is wrong can be more of an issue for a barrister than at first it may seem. Bringing about a universal good, rather than achieving virtue or enjoyable consequences for others, is resolved not through any highbrow sense of morality, nor is it engrained within the hallowed words of the Bar Council Code of Conduct.

Instead, the decision seems to lie wholly within the set of circumstances in which the individual finds themselves at that precise instant in time - regardless of who that individual may be and whichever code they ought to be following. It is therefore from moment to moment, and the effect of those momentary circumstances upon the individual which determines whether they decide to treat humanity as a means to an end, or an end to a means. But hang on a moment.

Surely, this is precisely what each and every one of 'us' - the lay people in society - has to do everyday of our lives? If this is the case, then the concept that solicitors, and in particular barristers, are personages somehow morally raised above the masses, diminishes enormously. The evidence of Stannard, Temple and Massey would seem to indicate that they are no more moral - from an ethical perspective - than the rest of us. So why do we continue to perceive barristers as being permanently on a higher ethical pedestal?