Khan v Bar Standards Board

Professional misconduct requires conduct of sufficient gravity. Trivial, inconsequential or excusable lapses do not qualify, and the assessment is not tied to a rigid formula. A robing room is not a regulatory no-go area. Broadcasting untested, highly damaging allegations about a named professional, learned through a former client, and intruding on the privacy of the opponent’s spouse can cross the threshold and justify disciplinary action. Such proceedings may interfere with Convention rights under Articles 8 and 10, but may be justified by protecting the reputation and rights of others, preventing misuse of confidential information and maintaining professional standards. A civil remedy does not displace disciplinary jurisdiction. Appellate deference to a disciplinary tribunal remains appropriate, but a manifestly excessive suspension must be reduced after considering proportionality, impact, totality and mitigation.

Forz Khan, a practising barrister, appealed under section 24 of the Crime and Courts Act 2013 from a disciplinary decision of the Bar Tribunal and Adjudication Service in PC 2016/0175/D3. He had pleaded guilty to three charges of professional misconduct under Core Duties 3 and 5 of the Bar Code of Conduct. The charges concerned broadcasting serious allegations about another barrister in two robing rooms and sending a LinkedIn message to that barrister’s wife. The tribunal imposed concurrent suspensions of seven months on each charge.

The appellant argued that the admitted conduct did not amount to professional misconduct, that Articles 8 and 10 provided a defence, and that his guilty pleas followed inadequate legal advice. In the alternative, he challenged the proportionality of the sanction. The central issues were whether the convictions could be challenged after guilty pleas, whether the conduct crossed the required threshold, whether disciplinary proceedings were Convention-compliant, and whether the sanction was excessive.

Appeal against conviction dismissed; sanction varied.

1. Guilty pleas. The court accepted, by analogy with criminal appeals, that a guilty plea is not an absolute bar to appellate intervention. Exceptional intervention may be justified where bad legal advice deprived the appellant of what was in all likelihood a good defence in law, or where the admitted facts did not legally constitute the offence. The advice to plead guilty was not probably wrong, and a rehearing would not probably have produced a different result. This approach was considered in R v Asiedu [2015] EWCA Crim 714, R v Boal (1992) 95 Cr. App. R. 272 and R v Mohamed (Abdalla) [2010] EWCA Crim 2400.
2. Professional misconduct. The authorities established a high threshold, but not an exhaustive verbal formula. The conduct had to be serious and sufficiently reprehensible. Broadcasting untested allegations of stalking, rape and threats to a named barrister in two robing rooms, to an unknown audience, was a serious failure of professional judgment. Repeating another person’s defamatory allegation did not avoid responsibility. The LinkedIn communication was less grave, but was still a serious intrusion into the privacy of the opponent’s spouse and likely to diminish public confidence in the profession.
3. Public domain and alternative remedies. Information loses confidentiality when it is generally accessible, but public hearings or access to court records did not establish that these pre-charge criminal allegations were public knowledge. Civil remedies in defamation or harassment served different purposes and did not remove the disciplinary jurisdiction.
4. Convention rights. Reliance on the communications in disciplinary proceedings interfered with Article 8 correspondence and Article 10 expression. The interference was prescribed by law and pursued legitimate aims, including protecting reputation and rights, preventing disclosure of information received in confidence and maintaining professional standards. It answered a pressing social need and was proportionate. Livingstone v Adjudication Panel for England [2006] EWHC 2533 was distinguishable.
5. Sanction. The tribunal was entitled to impose suspension, but seven months was manifestly excessive. It imposed an unduly deterrent sanction without evidence of a systemic problem, failed sufficiently to consider the impact of suspension, adopted an excessive nine-month starting point and gave inadequate credit for the early admissions and mitigation. The court substituted concurrent suspensions of three months for each robing-room charge and five weeks for the LinkedIn charge.

1. High Court (Administrative Court). The appeal from the disciplinary tribunal was dismissed on conviction. The seven-month concurrent suspensions were set aside and replaced with concurrent suspensions of three months on each robing-room charge and five weeks on the LinkedIn charge.
2. Bar Tribunal and Adjudication Service Disciplinary Tribunal. The appellant pleaded guilty to three charges of professional misconduct and received concurrent seven-month suspensions.