Professional Misconduct, Article 8 and Article 10 in Bar Standards Board Proceedings

Professional Misconduct, Article 8 and Article 10 in Bar Standards Board Proceedings

On Friday 24th August Mr Justice Warby handed down judgment in the appeal of Forz Khan from the Bar Tribunal and Adjudication Service (the Tribunal) against his conviction and sanction.

The appeal against conviction is of interest for a number of reasons –

  1. Mr Khan had admitted the charges before the Tribunal. Following consideration of the facts [5-7] the judgment went on to consider the approach to removal of guilty pleas in regulatory proceedings [16-30], both parties accepted that a parallel could be drawn with criminal proceedings. At [24] Warby J stated – ‘If made out, it would seem to fall within the second of the two bases on which this Court may allow an appeal, pursuant to CPR 52.21(3). An appeal will be allowed where the decision of the lower court was “wrong” or where it was “unjust because of a serious procedural or other irregularity in the proceedings in the lower court” and then at [30] The issue for me is whether it was “quite probably” wrong, such that Mr Khan would “quite probably” have been able successfully to defend the charges if differently advised. I do not believe that is so.’;
  2. Warby J then considered submissions as to the test to be applied for conduct to cross the threshold into being professional misconduct – [36] ‘The authorities make plain that a person is not to be regarded as guilty of professional misconduct if they engage in behaviour that is trivial, or inconsequential, or a mere temporary lapse, or something that is otherwise excusable, or forgivable. There is, as Lang J put it, a “high threshold”. Only serious misbehaviour can qualify. I am not sure that the threshold of gravity is quite as rigid or hard-edged as Mr Beaumont suggests. I do not believe that in Walker Sir Anthony May was seeking to crystallise an exhaustive definition of professional misconduct. Rather, he was reaching for a touchstone to help distinguish the trivial or relatively unimportant from that which merits the “opprobrium” of being labelled as professional misconduct. Nor do I read Lang J’s decision in Howd as seeking to set out precise parameters for what can and cannot qualify as professional misconduct. Indeed, in the passage cited she used three separate terms, “reprehensible, morally culpable or disgraceful”. I think it is perhaps unhelpful for this principle to be tied too firmly to particular phraseology. But even on the footing that the right test is that of “seriously reprehensible” it seems to me that, when Mr Khan’s behaviour is properly evaluated, it comfortably meets this standard, and that this is in effect the approach which the Tribunal adopted.’;
  3. Mr Khan sought to rely on Articles 8 & 10 of the European Convention on Human Rights to provide defences to the charges he faced. The Court found that Articles 8 & 10 were engaged but that the interference was justified under Articles 8(2) & 10(2).  Article 10 was relied on in respect of charges 1 & 2 [61-66] with the following conclusion [65] – ‘This purpose corresponds to a pressing social need and, making all due allowance for the wide parameters of the Article 10(1) right, the pursuit of disciplinary proceedings was a proper and proportionate means of serving those needs.’ Article 8 was relied on in respect of charge 3 [67] – But again, the pursuit of disciplinary proceedings in respect of this wholly inappropriate communication with the spouse of a former client’s opponent served more than one legitimate aim, corresponded to a pressing social need, and was in itself, proportionate to such need.’

The appeal against sanction [69-77] was allowed with the sanction of suspension from practice being reduced from a total of seven months to a total of three months.

Martin Goudie QC appeared for the Bar Standards Board before the Tribunal and in the High Court.

Media coverage can be found here –

The Times

Law Society Gazette

Legal Futures