Proudman: Human rights argument successful
High-profile barrister Dr Charlotte Proudman will be allowed to argue before a disciplinary tribunal that the Bar Standards Board (BSB) discriminated against her by bringing a prosecution over tweets she posted.
His Honour Judge Jonathan Carroll, chair of the Bar Tribunal and Adjudication Service, rejected the BSB’s argument that the case should focus on the tweets and not any wider context.
However, sitting as a directions judge, he refused Dr Proudman’s application for the case to be struck out.
Despite media efforts to sit in on the hearing, HHJ Carroll held it in private. But his ruling from last week has been made public, along with the skeleton argument of Dr Proudman’s counsel, Alison Padfield KC and Sophie Belgrove.
The case concerns nine tweets within a 14-part thread about a high-profile case where the barrister argued unsuccessfully that her client was coerced into signing a post-nuptial agreement by her husband.
The BSB alleges that, in explaining why she disagreed with the decision of Mr Justice Jonathan Cohen the tweets were misleading and insulting to the judge. One said: “This judgment has echoes of the ‘boys club’ which still exists among men in powerful positions.”
The skeleton argued that “the tweets, which set out her sincerely held concerns about the minimisation of domestic abuse by the family courts, had a sound factual basis and did not contain seriously offensive, derogatory language which was designed to demean and/or insult the judge”.
More broadly, Dr Proudman’s position is that she has suffered less favourable treatment because of her sex and/or a protected belief (feminism), citing the BSB’s failure to investigate tweets sent by nine male barristers who strongly criticised another judge or “offensive” tweets sent by male barristers to her.
She also highlighted that one of the reasons for the decision to refer her to the tribunal was that she “allowed her pursuit of the cause of campaigning for women’s rights to obscure the findings of fact by the judge in this case to the detriment of the judge and the husband”.
HHJ Carroll held that the interaction of article 6 of the European Convention on Human Rights (ECHR – right to a fair trial) and article 14 (prohibiting discrimination) meant that Dr Proudman could make this argument.
“There [are] overwhelming public policy/public interest reasons to ensure that where discrimination is said to have contaminated decisions of public authorities and/or judicial/regulatory processes, that that issue is litigated.
“As it cannot be litigated under the Equality Act 2010 in the Bar Tribunal [an earlier finding in the ruling], as a public authority it must be the case that the Bar Tribunal can adjudicate upon this matter itself by the application of the [Human Rights Act] 1998 and ECHR.”
If it could not, he went on, Dr Proudman would have to “embark upon a series of cases across varying tribunals which may or may not accept or adopt the findings of others. That cannot be right and cannot be the effect of the law”.
Dr Proudman had also argued that the proceedings were an abuse of process. The tribunal has to weigh competing public interests to do so and HHJ Carroll said the proceedings were not sufficiently advanced to be able to take “the exceptional decision” of staying them.
He concluded that both the human rights and abuse of process arguments should be heard by the full tribunal.
“To rule otherwise would effectively deny her the article 6 and article 14 protections. As a public body the BSB and the Bar Tribunal are obliged to ensure the protection of those rights and would, in my view, be acting unlawfully in preventing those matters being fully and properly assessed.”
He did not accept the BSB’s proposition that the tribunal was not competent to deal with these issues or that they would be too burdensome – he found no basis for the BSB’s suggestion that the hearing would take four weeks given that much of the evidence would likely be in writing.
But with matters not yet in “a proper state upon which reasoned factual findings can be made”, he declined to strike out the charges at this stage.
“The judgements to be made after appropriate findings of facts are nuanced and best made by a full panel.”
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