The regulation of private life

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A guest post by Marc Beaumont, barrister at Windsor Chambers

Beaumont: BSB trawls social media for issues about barristers

Despite it now having been stated judicially in Wingate v Solicitors Regulation Authority that lawyers need not be paragons of virtue, barristers are increasingly scrutinised by the Bar Standards Board (BSB) for what they say and do in some areas of their private lives.

The BSB Handbook itself is not on its face merely concerned with what barristers do in their professional lives. Core Duty 5 (not to behave in a way which is likely to diminish the trust and confidence which the public places in a barrister or in the profession), applies “at all times”, not merely during professional practice: see rC2.

However, gC27 of the Handbook states that conduct which is not likely to be treated as a breach of CD3 (dealing with honesty and integrity) or CD5 includes (but is not limited to): minor criminal offences and “conduct in a barrister’s private or personal life”, unless this involves abuse of professional position or committing a criminal offence, other than a minor criminal offence.

But gC27 appears to be treated as a minor obstacle by the BSB. Any behaviour which is likely to diminish the trust and confidence which the public places in a barrister or in the profession, can at least be investigated by the BSB.

There is an obligation to engage with the BSB too, as CD9 (duty to cooperate with BSB) also applies at all times: rC2. This enables the BSB to investigate all and any behaviour in private life to discover if CD5 has been breached in private life.

Such an investigation could, in theory, be about the most intimate or sensitive matters. A refusal to answer on the basis that the matter is none of the BSB’s business, could itself be a breach of the Handbook.

But what is ‘private life’? Emails may contain electronic signatures. They must also now carry the words ‘Regulated by the Bar Standards Board’. An email sent in bad taste to a friend at a weekend, or after hours, bearing such an electronic signature, may have absolutely nothing to do with professional practice, but might arguably bear upon the reputation of the profession if it falls into the wrong hands.

A political or religious speech made anonymously at Speaker’s Corner by a barrister is one thing, but a tweet published online about a political matter, where the barrister describes himself as such in his biography, is private conduct arguably bearing on professional status.

A chambers’ function is a professional event, but when and in what circumstances does socialising with colleagues become a private event at which the barrister can become intoxicated, swear, tell lewd jokes and generally let his hair down without professional consequences?

If a barrister is entitled to hold and express extreme, even discriminatory, opinions in his own home, what if he does so and a window is open through which such offensive views are heard by a neighbour, who happens to know that he is a member of the Bar?

It appears that the BSB now devotes quite extensive manpower to trawling social media for issues about barristers. Barristers misusing social media do not tend to fare well with the BSB.

The prosecution of egregious rudeness on social media that is linked to professional status is one thing: see, for example, the recent case of Diggins. But what if the barrister uses a pseudonym and then expresses his or her views on Twitter on an issue of the day in colourful language, only to be outed later as a member of the Bar?

Such a tweet may clearly relate to private life, engage a barrister’s right to freedom of expression under article 10 of the European Convention on Human Rights, not be overtly linked to barrister status, not involve abuse of professional position and so attract the limiting effect of gC27. There is every likelihood, however, that the BSB will still investigate such a barrister, probably for a period of months and a real possibility that it will prosecute.

But a barrister who behaves, or even misbehaves, within the criminal law in his or her private life should never be subject to investigation, which is itself a violation of articles 8 and 10. Investigation itself has a chilling effect, as the BSB must know.

Surely the BSB does not wish to be likened by those it regulates to a self-appointed secret police force. It would be difficult to identify any conceptual or practical difference then between a regulator and the organisation portrayed in Das Leben der Anderen.

Despite this danger, there are clear signs in my work of a move towards greater interference by the BSB in private life and freedom of expression. The bringing to bear at triage of an awareness that such interference strikes at the heart of what it means to live and work in a free society is too much to expect.

The BSB would not appear to accept Sir Stephen Sedley’s conception of freedom as set out in Redmond-Bate v DPP (1999) BHRC 375 at [20], but should have it engraved over case officers‘ desks: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.

“Freedom only to speak inoffensively is not worth having. … From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power.”

Marc Beaumont specialises in professional disciplinary work and is the author of a new book, Beaumont on Barristers: a guide to defending disciplinary proceedings, released by Law Brief Publishing, June 2020