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British barrister beats woke Bar Standards Board

“The ethos of service and duty that used to underpin so many professions often seems to have been replaced with a claim to moral leadership by the better-educated.”

Head, hand & heart: The struggle for dignity and status in the 21st Century David Goodhart, 2020, Allen Lane, p17

The facts

In 2021, British barrister Jon Holbrook was investigated by the Bar Standards Board (BSB) over a series of social-media posts. 17 were thrown out. It decided that one of the 18 tweets in question constituted a breach of professional conduct.

The tweet posted on 17 October 2020 he got into trouble for was as follows:

“Free speech is dying and Islamists and other Muslims are playing a central role. Who will lead the struggle to reinstate free speech as the foundation of all other freedoms?”

Independent Decision-making Panel decision

The Independent Decision-making Panel at first instance found that Holbrook had breached duty five of its handbook:

“you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession”.

Having already been thrown out of his chambers, he was sanctioned and fined £500.

Bar Tribunals and Adjudication Service Appeal decision

Holbrook appealed the decision on the following grounds:

1. under the Equality Act 2010 which protects ‘philosophical belief’
2. under the common law and human rights law that protects speech
3. because the charge of causing offence and possible hostility towards Muslims:
a) sets the bar far too low for bringing either me or the profession into disrepute
b) is not set out in the BSB Handbook, is ultra vires and is not prescribed by law
c) breached natural justice as I was given no chance to respond to this new charge
4. because the procedure breached my right to a fair trial under article 6 of the ECHR and common law.

The appeal panel decided that Holbrook’s tweet had not breached this duty, and ruled that the tweet was not “seriously offensive or seriously discreditable within the terms of the handbook guidance”.

The panel held that:

“Given the protection afforded to freedom of speech, the panel did not consider that it was reasonably open to the independent decision-making panel to conclude that core duty five was breached or that, even if core duty five could be breached simply by political speech which would cause offence, the application of a sanction was necessary in a democratic society or proportionate.”

The appeal was upheld.

Conclusion

Other barristers in the UK have found themselves in trouble for political speech. Feliks Kwiatkowski, a barrister who during a meeting with another barrister, argued that female lawyers tend to ‘over-egg the pudding’ and that this had led to a ‘ground shift’ in the way legal work was approached, was sanctioned and fined £500.

Allison Bailey, a founding member of the LGB Alliance, a group that campaigns for the rights of same-sex-attracted people, once wrote that “Gender extremism is about to meet its match” and was investigated by her chambers in cahoots with trans-rights lobby group Stonewall.

In Queensland, one leading criminal law solicitor we know was investigated by the Legal Service Commissioner merely for posting appeal decisions against decisions of a Magistrate who is well known for being appealed against. He had to provide an undertaking to remove and not publish such posts again in order to avoid prosecution.

Legal profession bodies have a role in regulating the profession to ensure that legal services are provided by people fit to do so. In the UK, they seem to be increasingly distracted by woke issues as many other public bodies are nowadays.

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