Forz Khan v Bar Standards Board [2018] EWHC 2184 (Admin)

Transcript

Forz Khan v Bar Standards Board [2018] EWHC 2184 (Admin) was an appeal by a barrister of twenty years’ call against his suspension for seven months by a Bar Tribunals and Adjudication Service Disciplinary Tribunal on three counts of professional misconduct. Mr Justice Warby allowed the appeal in part, quashing the suspension and substituting a lesser sanction of three months.

Mr Khan had pleaded guilty before the Tribunal on 22 March 2018 to three charges of breaching Core Duties 3 and 5 of the Bar Standards Board Code of Conduct (ninth edition), which required barristers to act with honesty and integrity and not to behave in a way likely to diminish public trust in the profession. The charges concerned his conduct between February and May 2016. The first two charges alleged that Mr Khan had broadcast serious allegations, made to him by a former client, Ms McBride, in the robing rooms at Stafford Crown Court on 5 February 2016 and Birmingham Crown Court on 23 May 2016. Those allegations were that another barrister, Mr Jones, had stalked and raped Ms McBride and conspired to cover up those acts by threatening her life. Mr Khan named Mr Jones but did not name Ms McBride. The third charge alleged that on 7 March 2016 Mr Khan had contacted Mr Jones’s wife via LinkedIn with messages alluding to the allegations against her husband. Mr Khan did not know either Mr Jones or his wife. The Tribunal had sentenced Mr Khan to seven months’ suspension on each charge, to run concurrently, having started at nine months and reduced the term to reflect mitigation including his early admissions and apology.

The facts were set out in an agreed statement. Ms McBride had instructed Mr Khan in late 2014 or early 2015 in connection with allegations of criminal harassment. She and Mr Jones had had an intimate relationship which ended acrimoniously in October 2014. Each made criminal allegations against the other and instituted civil proceedings for harassment. Ms McBride alleged rape in March 2015 and was later stabbed; she claimed Mr Jones had caused the stabbing. Mr Khan ceased to be instructed around mid-2015. In the robing rooms on the two occasions, Mr Khan spoke to other barristers about the allegations. Mr Lewis, a colleague of Mr Jones, overheard the conversation at Stafford and understood Mr Khan to be saying that Mr Jones had been arrested for rape, that he had stalked and raped a female solicitor or barrister, and that serious threats had been made to her life to cover up the offences. Mr Khan accepted that he had broadcast the allegations but stated that he honestly believed what Ms McBride had told him was credible and that he was only repeating her allegations. He accepted that he contacted Mrs Davies via LinkedIn in March 2016 with messages referring to her husband having a personal difficulty. Mr Khan later signed an undertaking not to repeat the allegations and in October 2017 indicated an intention to plead guilty and apologised for his conduct. The civil proceedings between Ms McBride and Mr Jones were heard in November 2016 by Her Honour Judge Hampton QC, who dismissed Ms McBride’s claim, found her to be an untruthful witness who had fabricated communications, continued the injunction in Mr Jones’s favour and awarded him damages of seven thousand pounds. Criminal investigations against Mr Jones were not pursued.

Mr Khan appealed against both conviction and sentence. He was represented before the Tribunal by Mark Simpson QC but appeared on appeal through Marc Beaumont instructed under the Bar Public Access scheme. The Bar Standards Board was represented by Martin Goudie QC both below and on appeal. Mr Khan waived privilege and filed evidence from himself and from Mr Simpson QC to explain that he had not been advised about either the threshold test of seriousness derived from the authorities or the potential impact of Articles 8 and 10 of the European Convention on Human Rights. He said he would have pleaded not guilty had he been so advised. Mr Simpson confirmed that he had not discussed those authorities or the Convention but stated that he believed his advice to plead guilty had been correct.

Mr Khan submitted that the threshold for professional misconduct required the behaviour to be seriously reprehensible, relying on Walker v Bar Standards Board PC 2011/0219 (19 September 2013, unreported, before the Visitors to the Inns of Court) and Bar Standards Board v Howd [2017] EWHC 210 (Admin). He argued that what he had done, particularly in the robing rooms, was no more than gossip or tittle-tattle and did not cross that high threshold. He contended that the allegations had already been in the public domain through court proceedings and a LinkedIn post by Ms McBride. He relied on the availability of an alternative remedy in defamation and emphasised that he had acted without malice, believing Ms McBride to be credible. He argued that if the conduct was properly analysed as mere gossip it could not amount to professional misconduct and that the Tribunal had erred in law in concluding otherwise. He also argued that the disciplinary proceedings and sanctions interfered with his rights under Article 10 (freedom of expression) in respect of the robing room charges and Article 8 (respect for correspondence) in respect of the LinkedIn charge, and that those interferences were not justified under Articles 8(2) or 10(2) as they did not correspond to a pressing social need and were disproportionate. He submitted that the core duties should be read down under section 3 of the Human Rights Act 1998 to ensure compatibility with Convention rights, relying on Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin). He maintained that he had received bad advice which deprived him of what was in all likelihood a good defence in law, relying on R v Mohamed (Abdalla) [2010] EWCA Crim 2400 and R v Boal (1992) 95 Cr App R 272.

Mr Justice Warby admitted the fresh evidence and considered whether Mr Khan would quite probably have succeeded in his defence had he been properly advised. The Judge held that Mr Simpson QC’s advice had been correct and that Mr Khan was right to plead guilty. The threshold of seriousness was met on these facts. Mr Khan had possessed highly confidential and sensitive unproven information learned from a professional client and had broadcast serious allegations of stalking, rape and conspiracy to murder in public professional environments to randomly selected strangers, naming Mr Jones, over a sufficient period that Mr Lewis could leave and return to find him still speaking. He spoke in such a way that listeners understood him to mean the allegations were true. He did so on two separate occasions, demonstrating premeditation. The information was personal, private, sensitive and highly damaging to reputation. The civil proceedings had not made the detailed allegations public knowledge in any real sense; indeed, both parties had sought and obtained injunctions to prevent publicity on the grounds of harassment. Mr Khan had no good reason to believe the allegations were public at the time and he knew Mr Jones was not present to answer them. The LinkedIn messages, though less grave, were also a serious failure. Mr Khan had used information learned professionally to write uninvited to the wife of his former client’s opponent about very personal and upsetting matters concerning her husband, without knowing her and without any justification or explanation. The conduct in both respects was seriously reprehensible and went well beyond mere gossip. It was wholly unacceptable and likely to diminish public confidence in the profession. The Judge rejected the submission that the availability of defamation proceedings exhausted the need for disciplinary action, noting that disciplinary proceedings served quite different purposes including vindicating professional standards and upholding the public interest. The conduct involved a failure to act with integrity within the meaning explained in Wingate v The Solicitors Regulation Authority [2018] EWCA Civ 366 and breached Core Duty 5 by conduct likely to diminish public confidence. The threshold of professional misconduct was comfortably crossed and there was no probability that a rehearing following a not guilty plea would have led to a different conclusion.

On the human rights ground, the Judge accepted that the proceedings interfered with Mr Khan’s rights under Articles 8 and 10 but held that the interference was justified under Articles 8(2) and 10(2). The disciplinary process pursued legitimate aims prescribed by law, namely the protection of the reputation and rights of others (including Mr Jones and other barristers), the prevention of disclosure of information received in confidence, and the maintenance of public confidence in the profession. Mr Jones’s Article 8 rights were engaged. The interference corresponded to a pressing social need to uphold professional standards and to make clear that such disclosures of sensitive personal information imparted by a client in confidence were unacceptable. The proceedings were a proportionate measure. Mr Khan’s speech ranked low in the hierarchy of free speech values, being characterised as mere gossip with no higher public interest purpose. The need for a compelling justification for interference was correspondingly less, but a compelling justification existed. Mrs Davies also had a reasonable expectation that her privacy would be respected and that lawyers instructed on the other side of litigation would not exploit what they had learned professionally for unwanted intrusions into her life. None of the aims served could be satisfactorily achieved merely by civil litigation at the instance of Mr Jones or Mrs Davies. The case was distinguishable from Livingstone, where the officeholder was off duty and the rules had been interpreted too broadly.

On sanction, however, the Judge allowed the appeal. He held that the Tribunal had fallen into error in at least four respects and that the sanction of seven months’ suspension was manifestly excessive and disproportionate. First, the Tribunal appeared to have imposed a deterrent sanction beyond what the individual facts merited, in the absence of evidence of a systemic problem requiring such deterrence. Secondly, the Tribunal’s reasoning showed no evidence that it considered the impact of suspension on Mr Khan, who was a sole practitioner and would be deprived of his livelihood. Thirdly, the starting point of nine months’ suspension was clearly excessive even with the aggravating features, and out of kilter with the illustrative examples in the BTAS Sanctions Guidance. Fourthly, the Tribunal failed to give sufficient credit for Mr Khan’s early acceptance of guilt and other mitigation; a discount of two months (or twenty per cent) was inadequate and credit of at least one third was merited. The Judge rejected the submission that Mr Khan had forfeited credit for his early admissions by pursuing the appeal; the admissions had spared the complainants attendance and saved costs, and the appellate arguments had been made only on appeal pursuant to fresh advice.

Mr Justice Warby reassessed the sanction and substituted an appropriate global starting point of five months’ suspension after consideration of aggravating features and the principle of totality. After due allowance for mitigation and an appropriate discount for Mr Khan’s early admissions, the Judge substituted a sanction of three months’ suspension on each of the robing room charges to run concurrently and five weeks’ suspension on the LinkedIn charge also concurrent, for a total effective term of three months’ suspension. The Judge held that this was amply sufficient to mark the seriousness of the matter and to send an appropriate signal to the profession and the public. In short, Mr Khan’s convictions were upheld but his suspension was reduced from seven months to three months.

Howd v Bar Standards Board [2017] EWHC 210 (Admin)
Asiedu [2015] EWCA Crim 714, [2015] 2 Cr App R 8
M Najib & Sons Ltd v Crown Prosecution Service [2018] EWCA Crim 909
Felix v General Dental Council [1960] 2 AC 707 (PC), [1960] 2 All ER 391
Lewis v Daily Telegraph Ltd [1964] AC 234
Attorney General v Observer Ltd [1990] 1 AC 109
Cape Intermediate v Dring [2018] EWCA Civ 1795, [2019] 1 WLR 479 , [2019] 1 All ER 804
Attorney General v Newspaper Publishing Plc [1988] Ch 333
Sir Cliff Richard OBE v The British Broadcasting Corporation [2018] EWHC 1837 (Ch)
Wingate & Evans v Solicitors Regulation Agency [2018] EWCA Civ 366, [2018] 1 WLR 3969
Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin)
Chambers v Director of Public Prosecutions [2012] EWHC 2157 (QB), [2013] 1 WLR 1833

McKennitt v Ash [2006] EWCA Civ 1714, [2008] 1 QB 73
Salsbury v Law Society [2009] EWCA Civ 1285
Mohamed (Abdalla) [2010] EWCA Crim 2400
Asiedu [2015] EWCA Crim 714
Boal (1992) 95 Cr. App. R. 272
Walker v Bar Standards Board PC 2011/0219, 19 September 2013
Harman v United Kingdom (1985) 7 EHRR CD146
Silver v United Kingdom (1983) 5 EHRR 347
Lindon v France (2008) 46 EHRR 35
Redmond-Bate v DPP (1999) BHRC 375
Salsbury v Law Society [2009] EWCA Civ 1285,[2009] 1 WLR 1286

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