The Bar Standards Board Review Panel found that a barrister with aphasia was fit to practise as a barrister. It was relevant that judges have a non-statutory duty to make reasonable adjustments for disability, though not a statutory duty to do so under the Equality Act.
 EqLR 473, Bar Standards Review Panel.
A barrister had a stroke in 1999. It had been doubtful whether he would survive, and if he did, whether he would recover any speech or (possibly) mobility. In the event he recovered both mobility and, by virtue of intense therapy, his speech. He resumed work as a barrister from April 2001.
However, judges in a Court of Appeal case in which he appeared (and won) in 2008 expressed concern about his advocacy in the case. Following a decision of a Medical Panel of the Bar Standards Board, the barrister was not allowed to appear in the High Court, Court of Appeal or Supreme Court. He could appear in lower courts and tribunals, but had to give written notice of his medical history to the court and to his client.
Decision by Bar Standards Board Review Panel
Summary of decision
- The barrister was fit to practise as a barrister.
- Judges managing a hearing do not have a reasonable adjustment duty under the Equality Act, but
- judges do have a non-statutory duty to make reasonable adjustments. This duty was relevant to a panel deciding whether a barrister was fit to practise.
Found fit to practise
The barrister successfully appealed to the Bar Standards Board Review Panel, who found him fit to practise as a barrister in all courts. He gave evidence to the Panel that he had appeared without complaint and with success in numerous cases since 2002, and had re-established a regular client base of solicitors. There was medical evidence that his speed of oral delivery and formulation of certain words and phrases was significantly impaired due to his permanent expressive dysphasia (also known as aphasia).
The Review Panel decided that the stroke has left him with a significant impairment of his faculties of speech and working memory. However, the evidence was that he was capable of meeting the oral advocacy standards required of a barrister, provided suitable adjustments and allowances were made to accommodate the disability. He had already, in consultation with his Head of Chambers, imposed some special requirements in relation to his practice, in the interests of giving both his clients and the relevant court or tribunal some advance knowledge of his disability. The Panel commented that courts would expect to be made aware of his disability, so that they understood why his advocacy is as it is, and could make whatever adjustments they consider necessary.
Reasonable adjustment duty under Equality Act did not apply to judges
The Review Panel considered that he had a disability within the meaning of the Equality Act 2010. The Panel assumed for this purpose that the disability meant his discourse required to be listened to over a longer time than a barrister in the same case without his disability, and without undue pressure of questions.
However the Panel decided that judges do not have a reasonable adjustment duty under the Equality Act in this context. Judicial functions are exempt from the Equality Act under EqA Sch 3 para 3. The judge’s decision in a case on the evidence adduced would doubtless be a judicial function, and thus exempt from the Equality Act under that provision. However, what about management of the hearing by a judge? The Panel considered this was also a judicial function, and so exempt from the Act. In the Panel’s view, it was extremely difficult to distinguish between the management of a hearing and the decision-making process.
Accordingly, the judge did not have a duty under Equality Act 2010 to make reasonable adjustments in managing a hearing.
Non-statutory reasonable adjustment duty on judges
However the Review Panel considered that there is a non-statutory obligation on judges to make adjustments, ie outside of the Equality Act.
The Panel said that an act of discrimination affecting the outcome of a case could be made a ground for appeal or review of the decision or of a complaint about judicial conduct. The Panel cited the example of R v Isleworth Crown Court where the Administrative Court “enjoined observance of the Equal Treatment Bench Book on judges and magistrates as a matter of judicial conduct”.
As Parliament could be taken to have known of these principles of law, the exception in the Equality Act 2010 (above) for the performance of judicial functions could be taken to have been enacted in the knowledge that the judiciary imposes a parallel duty of compensation for disability.
In determining the question of fitness to practise, the relevant panel had to take account of adjustments which judges can be expected reasonably to make in compliance with the Equal Treatment Bench Book. The Panel spoke of “the judicial obligation to make reasonable adjustments when hearing a case presented by a barrister with a disability, a duty imposed otherwise than by the statute.”
This non-statutory duty to make adjustments should apply as regards disabled witnesses or defendants etc, at least as much as to disabled barristers. R v Isleworth Crown Court concerned a disabled defendant. There have been various later cases upholding the non-statutory duty on judges to make adjustments: see Appearing in court>Legal duty of judges to make adjustments. That page also deals with the Equal Treatment Bench Book