Farrukh Najeeb Husain v Solicitors Regulation Authority

On an appeal from a specialist professional tribunal, the High Court should intervene only for an error of law or fact, a serious procedural irregularity, or a sanction that is clearly inappropriate.

Political speech attracts heightened protection under Article 10 ECHR. Regulation of such speech requires more than mere offensiveness: the conduct must be seriously offensive or seriously discreditable. The IHRA working definition and examples may assist, but they are contextual and do not make criticism of Israel or comparisons with Nazi policy automatically antisemitic.

Antisemitism may be assessed by reference to the meaning of the words and their context, viewed by an observer with a reasonable understanding of its principal historical and cultural manifestations. Repeated racist, antisemitic and grossly offensive communications by a solicitor may justify striking off where a lesser sanction would not protect the public.

The appellant, a solicitor, appealed under section 49 of the Solicitors Act 1974 against the Solicitors Disciplinary Tribunal’s decision dated 28 March 2024. The Tribunal found that tweets and communications to the Solicitors Regulation Authority breached Principles 2, 5 and 6 of the SRA Principles 2019 and ordered that the appellant be struck off the Roll.

The appeal challenged the treatment of medical evidence, the application of Article 10 ECHR to political speech, reliance on the IHRA working definition of antisemitism and the proportionality of the sanction. The central issues were whether the Tribunal’s findings and approach involved an appealable error and whether striking off was clearly inappropriate.

1. Appeal dismissed. Appeals under section 49 of the Solicitors Act 1974 are governed by rule 52.21(3) of the Civil Procedure Rules 1998. The court may intervene for an error of law or fact, an error in the exercise of discretion or a serious procedural irregularity. Caution and restraint are required when reviewing findings and evaluative judgments of a specialist tribunal.
2. The Tribunal was entitled to exclude the psychiatric report from consideration on liability because it was served four months late. In any event, the report did not explain why the appellant tweeted antisemitic, racist and grossly offensive material over nine months. Medical evidence may in principle negate culpability, but it must establish a relevant causal connection. The Tribunal had properly considered reasonable adjustments and there was no need to determine whether the appellant satisfied the statutory definition of disability.
3. Political speech receives heightened protection under Article 10 ECHR, but that protection is not unlimited. Where a regulator disciplines a professional for public political speech, more than mere offence is required. The Tribunal’s findings that the communications were plainly, starkly, gratuitously and intrinsically offensive, and ultimately seriously offensive and seriously discreditable, satisfied the necessary high threshold.
4. The IHRA working definition was unobjectionable as a description of antisemitism as hatred or hostility towards Jews. Its examples were not automatic rules. Criticism of Israel, advocacy of a one-state solution, claims that Israel is a racist or apartheid state, and comparisons with Nazi policy may fall within protected political debate depending on their language and context. Racialised abuse, coded references to Jews, antisemitic tropes and Nazi imagery could nevertheless justify findings of antisemitism.
5. The Tribunal was entitled to admit expert evidence about antisemitism as a historical and cultural phenomenon, although it should have approached the evidence of an active participant in a polarised political debate with greater circumspection. Any error was immaterial because the Tribunal’s conclusions were independently supported by the language and context of the tweets.
6. The Tribunal was entitled to find repeated antisemitic and racist communications, including abuse directed at the SRA’s investigating officer, and breaches of Principles 2, 5 and 6. Its conclusion that striking off was necessary to protect the public and public confidence was not clearly inappropriate or outside the bounds of what it could properly decide.

• Solicitors Disciplinary Tribunal: On 28 March 2024, found the allegations proven and ordered that the appellant be struck off the Roll of Solicitors.
• High Court (Administrative Court): The appeal under section 49 of the Solicitors Act 1974 was dismissed.