BSB: Comments were not a trivial lapse
An experienced barrister should not have been suspended for “mere gossip” in the robing rooms of Crown Courts, the High Court was told this week.
John Hendy QC, representing Forz Khan, argued that since his call in 1972, it had never been professional misconduct for barristers to speak “without inhibition in the privacy of the robing room” and it was not misconduct now.
“The advent of the BSB [Bar Standards Board] in 2006 and its Handbook a few years after that, was not heralded as representing any sea-change in the kinds of behaviour in which the Bar was to be prohibited from engaging.
“Mere gossip is not and cannot be professional misconduct. Professional misconduct means something ‘seriously reprehensible’. The gossip in this case plainly did not reach that necessarily high bar.”
Earlier this year, Mr Khan was suspended by a Bar disciplinary tribunal for seven months after admitting “broadcasting serious allegations” made by a female pupil barrister, referred to as Ms A, against a male barrister, Mr M, who Mr Khan did not know.
The allegations included rape, assault and conspiracy to murder. They were first made in the robing room at Stafford Crown Court and later repeated at Birmingham Crown Court.
Mr Khan also contacted M’s wife, a solicitor, on LinkedIn and referred to her husband having a “personal difficulty”.
According to the skeleton argument for the High Court appeal, prepared by Mr Hendy and Marc Beaumont, Mr M and Ms A were in an intimate relationship for a year, after which there was an acrimonious split.
Mr Khan had a limited role in acting for Ms A in the fallout, which is where he obtained the information.
The skeleton said there had been a “miscarriage of justice” and also sought to set aside Mr Khan’s guilty pleas at the disciplinary tribunal because of what he did not know at the time.
It said: “There were an unknown number of third-party barristers who listened to him or engaged with him. Their identities were mostly unknown. It appears that no witness could say what Mr Khan actually said in the two robing rooms…
“On these facts, there was little or nothing to distinguish this case from that of any barrister mentioning a case in which he had been involved to another barrister or barristers based on information in the public domain.
“Barristers talk about their past cases all the time. The BSB did not seem to appreciate that. Their lay component may not know this.
“In these circumstances, the decision of the BSB to pursue this case, [pleading] guilty to the charges and the really severe sanction, are all apparently quite extraordinary.”
The skeleton said Mr Khan’s “gossip” was expressed pursuant to his right to freedom of expression enshrined in the Human Rights Act 1998, and the investigation and prosecution by the BSB and Bar disciplinary tribunal as public authorities violated his freedom of expression rights under article 10 of the European Convention on Human Rights.
The “few private email-type LinkedIn exchanges” were “at the very worst, imprudent, but did not reach the high bar of something ‘seriously reprehensible’”.
However, in his skeleton argument, Martin Goudie QC for the BSB said the regulator did not accept that Mr Khan’s comments were a “trivial lapse” made “in the heat of the moment”.
He said the argument that “robing room gossip” could not be “seriously reprehensible” and amount to misconduct failed to give proper consideration to “what was said, where and how” and the “increasing importance of confidentiality” for barristers, other professionals and society.
“Clearly robing room gossip will not necessarily constitute professional misconduct, but nor does something broadcast in a robing room prevent it from being professional misconduct.”
Mr Goudie asked the court to note various aspects of Mr Khan’s comments, including that they were premeditated, that Mr Khan was not discussing the case with another barrister but “broadcasting allegations to multiple individuals”, that the communication lasted a “significant time” and the information was not “already in the public domain”.
On Mr Khan’s LinkedIn remarks to M’s wife, Mr Goudie asked the court to note that, until accepting Mr Khan’s invitation to connect, M’s wife had no contact with or knowledge of him and the communication was “anything other than professional”.
Mr Goudie said that to rely on article 10 when the facts of Mr Khan’s case were considered was to “to trivialise it “.
He added: “The action of the BSB here is not seeking to restrict the ability of a barrister to present or prepare a case, discuss it properly with colleagues or to speak freely.”
Instead, he said, the regulator sought to prevent “serious and sensitive allegations based on confidential information Mr Khan obtained as a result of being instructed in a case being broadcast in an entirely inappropriate manner”.
Mr Beaumont conducted the oral hearing on behalf of Mr Khan. Judgment was reserved.
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