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In case you haven’t read it, Charon QC kicked off an interesting discussion about the Bar Standards Board’s censure of David Harris for some things he published as @geeklawyer by way of his protected Twitter account.

The BSB called it, “engaging in conduct which was likely to diminish public confidence in the legal profession, administration of justice or otherwise bring the legal profession into disrepute”, which is contrary to Paragraph 301(a)(iii) of the Code of Conduct of the Bar of England & Wales (8th ed).

David’s calls it a right to a private life – and suggests he has a defence in Article 8 of the ECHR, which states:

“Everyone has the right to respect for his private and family life, his home and correspondence” and “There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others”.

Charon laughed.

I think David may indeed have an Article 8 (and 10) point – even though I’m not a fan.

The issue is:  How far can the BSB, a public body, go in regulating a barrister’s tweets?

In my opinion, the BSB can only regulate where said tweets infringe on the protection of the rights and freedoms of others -such as the right to a fair and public hearing. Indeed, the point of paragraph 301 of the Code – the paragraph Geeklawyer was found by the BSB to have breached – is to ensure a barrister’s conduct does not interfere with that right.

The BSB haven’t included the reason(s) why they found Geeklawyer’s tweets in breach of paragraph 301(a)(iii) on their website – and the BSB’s Press Office tell me that they don’t make their reasons public.

In the absence of reasons, the public – and even barristers bound by the Code – are left to speculate why the BSB drew the conclusion it did by applying the 301 test ourselves – and considering whether the BSB’s finding of a breach of 301 by Geeklawyer is Article 8 compliant.

Here we go.

The Charge against Geeklawyer read:

“[H]aving accepted public access instructions to appear as counsel in the matter of T and Others v Newzbin Limited in the Chancery Division of the High Court, via the internet site “Twitter” and using the pseudonym “Geeklawyer”, in connection with the trial in that matter, issued the messages listed in Appendix 1”.

The Appendix 1 tweets (from the BSB website):

“I like to think of orders of the court as gentle hints of preferred behaviour. [@HowardMCheng, 25th January 2010 at 13:30; ex. […], no 340] 2. Ooooh I kinda misread the claim. That’s bad. [26th January 2010 at 03:22; ex. […], no 322] 3. IF this settles now I am going to have a frickin’ tantrum. [@nipclaw, 26th January 2010 at 04:01; ex. […], no 316] 4. BSkyB v EDS. Nice to see Herbert Smith win a case for once: I did them up the arse a while back 😉 [26th January 2010 at 09:33; ex. […], no 292] 5. genius. Have cut n pasted that into the conclusion [@johnhalton, 28th January 2010 at 04:10; ex. […], no 213] 6. will statple a couple of £50 notes to skeleton when I hand it up to the judge. [@johnhalton, 28th January 2010 at 04:10; ex. […], no 212] 7. bribery. I ask the judge to indict my client for stapling £50 notes to my skeleton when I want looking. Express horror and outrage. [@johnhalton, 28th January 2010 at 04:14; ex. […], no 211] 8. then bill client for disbursement to the judge + my uplift [@johnhalton, 28th January 2010 at 04:15; ex. […], no 210] 9. Bugger judges chancery division hassling me for my skeleton. Trial is on for monday. damn. [29th January 2010 at 03:09; ex. […], no 159] 10. encouraged the other sides expert witness doesnt understand our system: I have have played a part in this. FTW!!! 🙂 [29th January 2010 at 15:42; ex. […], no 135] 11. oops. Looks like I admitted something I should have denied. Oh. Dear. Me. 🙁 Gonna catch it in the neck for that) [30th January 2010 at 07:59; ex. […], no 125] 12. wondering if I can resile from “yea we are as guilty as sin, fuck me they are entirely right” [@lilianedwards, 30th January 2010 at 09:20; ex. […], no 121] 13. wondering if I can hire a hooker for the judge or rent-boy. Oooh. How do I find out his preference? Could just ask I guess [@Markystewart, 30th January 2010 at 09:54; ex. […], no 119] 14. I did my cross examination of expert yesterday. Bugger wouldnt cooperate but I had him. [@Charonqc, 2nd February 2010 at 00:52; ex. […], no 106] 15. I will try for ‘anilingus’ as word of the day. Triple word score and a bonus if it’s mentioned in the law reports? [@HowardMCheng, 2nd February 2010 at 00:53; ex. […], no 105] 16. left robes in hotel once, Judge permitted me to appear unwigged, he invited other barrister to appear likewise: prick refused [@nipclaw, 5th February 2010 at 16:20; ex. […], no 80] 17. I was: now far too hungover to tweet. Plus, I need to write closing speech [@CathyGellis, 7th February 2010 at 00:12; ex. […], no 63] 18. ooooh, Dont talk to me about breakfast am muchly hungover. That Lex made me drink lots of alcohol, the dirty rat [@_Poots_, 7th February 2010 at 00:35; ex. […], no 61] 19. I have to write a closing speech in one day for a super huge important case. *that’s* hardship [@_Poots_, 7th February 2010 at 00:39; ex. […], no 58]”.

So are these tweets a breach of 301(a)(iii)?

The 301(a)(iii) test is:

A barrister must have regard to paragraph 104 and must not:

(a) engage in conduct whether in pursuit of his profession or otherwise which is:

(i) dishonest or otherwise discreditable to a barrister;

(ii) prejudicial to the administration of justice; or

(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(b)  engage directly or indirectly in any occupation if his association with that occupation may adversely affect the reputation of the Bar or in the case of a practising barrister prejudice his ability to attend properly to his practice.

Some of Geeklawyer’s Appendix 1 tweets are pretty outrageous – and some are apparently about a Judge and opposing counsel. I say “apparently” for a reason because, as a member of the public, I have no idea whether the Appendix 1 tweets relate to a specific case or if he’s simply talking cobblers.

While the Appendix 1 tweets lead me to believe Geeklawyer is a pompous arse, my confidence in the legal profession and the administration of justice is unmoved.

If the public’s confidence in the legal profession and/or the administration of justice is unlikely to have been affected by David’s tweets – and if any disrepute attaches to the man and not the profession, then where is the breach?

Have the BSB conflated 301(a)(iii) with 301(a)(i)?

Are the Appendix 1 tweets 301(a)(i), “dishonest or otherwise discreditable”?

If so, does the scope of “discreditable” include the Appendix 1 offensive tweets?

As the Oxford English Dictionary defines “discreditable” as, “tending to bring harm to a reputation”, and as Geeklawyer’s tweets can be reasonably considered a discredit to himself, on the face of it, the BSB are entitled to find David breached the Code.

I’m confused because, the  “Guidelines for Barristers on Commenting to the Media on Cases seem to indicate a higher test:

“Barristers should be careful to express themselves carefully if they are commenting on cases in which they have been involved. It will almost invariably be inappropriate to make allegations about the good faith of a judge or other judicial officer or to use inflammatory language.

The purpose of these rules is to protect the independence of barristers. While barristers owe strong duties to their lay clients, they also owe an overriding duty to the court and should be careful not to bring their independence into question”.

But wait a minute

I can’t see where Geeklawyer has made any Appendix 1 allegations about the good faith of a judge or other judicial officer.

And while Geeklawyer made outrageous and offensive Appendix 1 tweets, I don’t see them as “inflammatory language” when the Oxford English Dictionary defines “inflammatory” as, “arousing or intended to arouse angry or violent feelings: inflammatory remarks“.

While upon reading the protected Appendix 1 tweets, it may be likely an opposing counsel or judge’s angry or violent feelings may have been aroused – the point of 301 and the Guidelines is to protect the public. The public, even if they would have been able to see the Apendix 1 tweets as published under Geeklawyer’s account, is most unlikely to have considered his choice of words, “inflammatory”.

How exactly then did the BSB conclude Geeklawyer was 301(a)(iii) Disreputable?

In Standards Board parlance: would an objective observer reasonably consider Geeklawyer’s Appendix 1 tweets diminish public confidence in the legal profession or officers or otherwise bring the profession into disrepute?

The answer must be no. The tweets reflect poorly on Geeklawyer himself – and not the legal profession.

Is the scope of 301(a)(i) “discreditable” Article 8 compliant in any event?

My private life swearing does me no credit. Can the BSB really fine me for it?

What about my Article 10 right to express myself, including my Redmond-Bate, “irritating, contentious, eccentric, heretical, unwelcome and provocative” speech?

So how does Ken help?

Former London Mayor Ken Livingstone was subject to a Code of Conduct obliging him not to,  “in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute”.

Some time ago, Ken, in my opinion, did not react as elegantly as he might have when door-stepped by a reporter after a party late one evening. Complaints were made to the Standards Board for England that in reacting as he did, Ken had conducted himself in a manner which brought his office or authority into disrepute. These complaints were upheld by the Standards Board for England and by the Adjudication Panel for England – and Ken was suspended for acting in an, “unnecessarily insensitive manner“.

Fortunately for Ken, he was able to finance a High Court appeal of the APE’s findings.  His case is cited as: Ken Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin).

In dealing with the matter of disrepute, Collins J held in Ken’s case that as a consequence of the Human Rights Act, there is a, “real distinction between the man and the office” and expressed the view that private capacity conduct will rarely be capable of bringing a member’s office or authority into disrepute – even if considered inappropriate or offensive.

Collins J went on to state that if Parliament wished to regulate the activities of members in their private lives, it would have to do so explicitly.

In light of this, Ken’s appeal was allowed and his suspension was quashed.

The point of Ken’s case is even elected officials subject to an off-duty Code of Conduct are entitled to a private life.

If the HRA applies in this way to elected officials, I struggle to see why it doesn’t equally apply to barristers. Where there are inconsistencies, the HRA and European rights will trump the Code.

In my opinion.

Finally, I may have completely misunderstood the way in which the BSB applied the Code and the law to the facts of Geeklawyer’s case. As the BSB has decided not to post its reasons on its website – and as I don’t know Geeklawyer – I may never know.

Article 6 provides open and transparent justice. Yet this case, in my opinion, appears unnecessairly shrouded.

Without open justice, the public may conclude that the BSB, like the SBE with Ken, has fallen into regulatory mission creep.

Surely that in of itself is contrary to the Code’s aim of open and fair justice.