Forz Khan v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 24 August 2018 |
| Neutral Citation | [2018] EWHC 2184 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1385/2018 |
| Date | 24 August 2018 |
[2018] EWHC 2184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(On appeal from the Bar Tribunal and Adjudication Service PC 2016/0175/D3)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Warby
Case No: CO/1385/2018
Marc Beaumont (instructed under the Bar Public Access scheme) for the Appellant
Martin Goudie QC (instructed by the Bar Standards Board) for the Respondent
Hearing date: 14th August 2018
Approved Judgment
Forz Khan is a practising barrister, of 20 years' call. On Thursday 22 March 2018, he appeared before a 3-person Disciplinary Tribunal of the Bar Tribunals and Adjudication Service (“BTAS”), charged with three counts of professional misconduct. Mr Khan pleaded guilty to all 3 charges. The Tribunal imposed a sanction of 7 months' suspension from practice on each charge, to run concurrently. Mr Khan now appeals to this Court in accordance with s 24 of the Crime and Courts Act 2013, and the provisions of CPR Part 52 and 52PD1 and PD52D. The penalty is stayed pending the outcome of the appeal.
Mr Khan challenges the findings of guilt, on the basis that although the relevant facts were not in dispute, and he pleaded guilty, his admitted behaviour did not amount to professional misconduct in law; he was not guilty, or at the very least he had a good argument that this was the position; he only admitted guilt on the basis of legal advice that was wrong, or at best incomplete; and there has thus been a miscarriage of justice. For these reasons, he submits that the decision should be quashed and the matter should be re-heard, if the BSB wishes it to be re-heard. In the alternative, Mr Khan contends that the sanctions imposed were excessive and hence disproportionate and unlawful.
At the heart of the appellant's case is the proposition that he has been subjected to a severe professional disciplinary sanction for behaviour, the majority of which amounted in substance to nothing more than an exercise in “robing room gossip” or “barrister tittle-tattle”. It is submitted that, to quote the Appellant's Skeleton Argument, “Mere gossip is not and cannot be professional misconduct”. The other conduct in question was private correspondence which may have been ill-judged, but neither this nor the “gossip” reaches the high threshold of being conduct that is “seriously reprehensible”. Alternatively, if it does, it cannot merit a sanction as severe as that imposed.
A separate strand in the appellant's arguments is that the spoken and written words for which he was sanctioned were protected by the Convention rights to freedom of expression and respect for correspondence. It is said that, on the facts of this case, the pursuit of disciplinary proceedings and/or the imposition of such sanctions represented an unjustified interference with the appellant's human rights under Articles 8 and 10 of the Convention.
The facts
What Mr Khan did, in summary, was this. On two occasions, in the robing rooms of two Courts in the Midlands, he spoke words that suggested to those who were present and heard him that a fellow barrister, Adrian Jones, had (a) stalked and then (b) raped another, female, lawyer who had been Mr Khan's client and, (c) when she complained of this, caused serious threats to her life to be made, in an attempt to cover up what had taken place. All the information that Mr Khan had about these matters came from his former client, Anne McBride, who was the complainant. Mr Khan did not name her in what he said, but he did name Adrian Jones. In between these episodes, Mr Khan sent two messages via LinkedIn to Emma Davies, Adrian Jones' wife, alluding to the allegations against her husband,.
This is a brief encapsulation of the facts on the basis of which the Tribunal proceeded, which were put before it in the form of a written statement of Agreed Facts. I have however changed the name of the complainant because, as someone who has alleged rape, she is entitled to lifetime anonymity (Sexual Offences (Amendment) Act 1992, s 1). To make anonymity effective in her case, I have also changed the name of the barrister she accused. Adrian Jones is not his real name. I have used this method of anonymisation, in preference to the use of initials, as it is at least as effective, less artificial, and reduces the potential for confusion. For the same reasons, I have used a false name for Mr Jones' wife, and shall need to do so for one other individual – a colleague of Adrian Jones, from the same barristers' Chambers, who features in the narrative.
That narrative can largely be taken from the Agreed Facts, which I shall now set out, in slightly edited form. I shall have to add in a few further factual matters that are matters of common knowledge among advocates, or which emerged in the course of the hearing before me, and have some bearing on the issues. My additions are in bold italics, in brackets.
“ Key Individuals
1. Mr Khan was called to the Bar by the Honourable Society of Middle Temple on 28th July 1998.
[He is a sole practitioner, specialising in crime, family, and immigration law.]
2. The Complainant in this case is … [Adrian Jones]… who is a practising barrister called to the Bar in November 2007; he practises from Chambers in Birmingham. [Mr Jones] has never met Mr Khan and had no knowledge of him prior to the matters that gave rise to this complaint.
3. [Mr Jones] is married to [Emma Davies] who is a practising Solicitor; they were married in December 2013.
4. [Ms McBride] was called to the Bar in November 2012, but, has not completed pupillage. [Ms McBride] is a member of the Institute of Legal Executives and works as a litigator.
5. [Mr Jones] and [Ms McBride] met through their professional work and were in an intimate relationship for about a year prior to the relationship ending in October 2014. [Mr Jones] did not disclose to [Ms McBride] that he was engaged and then married.
Background
6. The breakdown in the relationship between [Mr Jones] and [Ms McBride] was acrimonious and led to both [Mr Jones] and [Ms McBride] (i) making criminal allegations against each other; (ii) instituting civil proceedings against each other; and (iii) making complaints to the Bar Standards Board.
7. On 23rd December 2014 [Mr Jones] reported [Ms McBride] to the police for harassment. About a month later [Ms McBride] reported [Mr Jones] to the police for harassment.
[At or around this point in time Mr Khan was instructed by Ms McBride in respect of the allegations of criminal harassment .
On or about 23 February 2015, Ms McBride began civil proceedings against Mr Jones in the Birmingham County Court. She sought an injunction to restrain alleged harassment. The application was made ex parte. District Judge Parfitt adjourned it to a hearing on notice on 2 March 2015, when he granted an injunction against Mr Jones. Mr Khan was not instructed in those matters.]
8. On 3rd March 2015 [Ms McBride] was interviewed under caution by the police and admitted fabricating emails she had provided to them as part of the allegation of harassment she had made against [Mr Jones]. Three days later [Ms McBride] reported to a number of police forces that [Mr Jones] had raped her.
[Subsequently, Ms McBride placed a post on Mr Jones' LinkedIn page, referring to the injunction granted by District Judge Parfitt. The posting did not set out the text of the order but said “avoid this man” who was described as a “cheating, deceiving psychopath who will threaten you when you speak out against him.”
On 20 March 2015, prompted by this LinkedIn post and other matters, Mr Jones applied for an injunction against harassment, which was granted by HHJ Purle QC .
On 21 May 2015, the two cases came before Knowles J, when the injunctions against each party were continued, subject to some modifications, and directions were given .
On 7 July 2015, Mr Jones filed a witness statement in support of his claim, complaining of a “plethora” of allegations against him by Ms McBride.]
9. On 12th July 2015 [Ms McBride] attended at hospital with a stab wound to her right thigh. She was discharged on 16th July 2015. [Ms McBride] alleged that the stabbing was carried out on the instruction of [Mr Jones].
10. [Mr Jones] has been interviewed under caution by the police in respect of the allegations by [Ms McBride]. No further action has been taken against [Mr Jones] in respect of those allegations.
[At or around this point in time Mr Khan ceased to be instructed by Ms McBride. He was thus instructed for a period of some months between about late 2014 and mid-2015] .
11. [Ms McBride] remains under investigation for perverting the course of public justice in respect of allegations made against [Mr Jones].
12. The civil proceedings concerned counter claims of harassment between [Mr Jones] and [Ms McBride] and included applications for injunctions; initially by [Ms McBride] against [Mr Jones] and then by [Mr Jones] against [Ms McBride].
13. The claims were considered by HHJ Hampton QC sitting at the Northampton District Registry on 17th November 2016. The Judge dismissed [Ms McBride]'s claim and discharged the interim injunction granted in her favour. [She] ordered that the injunction obtained by [Mr Jones] should continue for a period of a further two years and awarded damages of £7,000 in his favour.
[The Judge found Ms McBride to be an untruthful witness. She found, among other things, that Ms McBride had deliberately fabricated emails and other communications which she alleged had been made by Mr Jones as part of a course of harassment. She rejected the contention that Mr Jones had caused Ms McBride to be stabbed.]
14. The complaint to the BSB in respect of [Mr Jones] by [Ms McBride] was dismissed...
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