Holbrook: Fundamental democratic right of free speech
A Bar Standards Board (BSB) panel applied too low a threshold in sanctioning a barrister for a tweet about Muslims that it said would cause offence, a tribunal has ruled.
The Bar Tribunal and Adjudication Service tribunal overturned the administrative sanction and £500 fine [1] imposed on Jon Holbrook, who hailed the decision as a victory for free speech.
The tribunal said the “mere causing of offence” was not enough to damage public trust in the profession given the importance of freedom of expression; it needed to be more serious.
Last year, Mr Holbrook found himself in the middle of a social media storm after one tweet in particular [2], which led to him being expelled from Cornerstone Chambers [3], although he said he had resigned four days earlier.
The BSB investigated Mr Holbrook over 18 tweets in all and cleared him in respect of 17 of them – including the one which triggered the probe – because they expressed his personal political opinions.
The exception was a response to a tweet calling on the French authorities to shut down Charlie Hebdo magazine following the beheading of schoolteacher Samuel Paty by an Islamist after he showed his class cartoons from the magazine depicting the prophet Muhammad.
The barrister wrote: “Free speech is dying & Islamists & other Muslims are playing a central role. Who will lead the struggle to reinstate free speech as the foundation of all other freedoms?”
The BSB’s independent decision-making panel (IDP) said the ordinary reasonable reader would understand this to mean that the Muslim community was to blame for curtailing free speech.
The panel considered that this “would not only cause offence but could promote hostility towards Muslims as a group”. This was likely to diminish public trust and confidence in breach of core duty (CD) 5 of the BSB Handbook.
It imposed an ‘administrative’ sanction of a warning about his future conduct online and £500 fine.
Mr Holbrook appealed. The tribunal, chaired by Lyndsey de Mestre QC, rejected Mr Holbrook’s contention that the IDP had sanctioned him for his beliefs; the central issue, it said, was where the line was drawn between speech which did and did not breach CD5.
“Given the importance ascribed to freedom of expression in the authorities… it follows that, for the expression of a political belief to be such that it diminishes the trust of the public in the particular barrister or in the profession as a whole, [it] will require something more than the mere causing of offence.
“At the very least, the relevant speech would have to be ‘seriously offensive’ or ‘seriously discreditable’ as suggested in the BSB guidance.
“Even in such cases, there would have to be a close consideration of the facts to establish that the speech had gone beyond the wide latitude allowed for the expression of a political belief, particularly where the speech was delivered without any derogatory or abusive language and the objection was taken to the political belief or message being espoused, rather than the manner in which that belief or message was being delivered.”
While the BSB’s social media guidance cautioned that “comments that you reasonably consider to be in good taste may be considered distasteful or offensive by others”, the tribunal said this did not “water down the protection afforded to freedom of expression in the political sphere”.
In any case, the IDP had not found Mr Holbrook intended to insult or demean anyone by his tweet.
This meant that the baseline for a breach of CD5 “should be set higher than merely that a comment would simply offend”.
The IDP’s finding that the tweet “could promote hostility”, being expressed conditionally, also fell short of the seriousness required to breach CD5.
Mr Holbrook said the BSB had tried to punish him for “crimes against a woke ideology” and accused it of determining its boundaries on political speech “at Islington dinner parties”.
He continued: “The ruling has confirmed that my fundamental democratic right of free speech was abridged by the BSB-imposed sanction.
“The appeal panel has set aside the sanction, but, more importantly, confirmed that regulators and others who seek to infringe the right to speak freely, do so at risk of acting unlawfully.”
The BSB declined to comment.