Martin John Carr Diggins v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 28 February 2020 |
| Neutral Citation | [2020] EWHC 467 (Admin) |
| Docket Number | Case No: CO/4028/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 467 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(On appeal from a Disciplinary Tribunal of the Council of the Inns of Court PC 2017/0455)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: CO/4028/2019
The Appellant in person
Simon Clarke (instructed by the Bar Standards Board) for the Respondent
Hearing date: 11 February 2020
Approved Judgment
Introduction
On 14 June 2017, a young black female student at Cambridge University posted on Twitter an Open Letter to the English Faculty. The letter stated that it was
“… the result of a meeting that took place amongst students about the need for the faculty to decolonize its reading lists and incorporate postcolonial thought alongside its existing curriculum … a call to not be so arrogant as to assume civilization began with the writing of white men and so this should be the basis of our learning.”
A number of suggestions were made, among them “The inclusion of two or more postcolonial and BME authors on every exam paper” and “A zero tolerance policy on the dismissal of race as a subject worthy of discussion/enquiry in essays.” Readers were invited to sign the Open Letter, to express support for its content and the suggestions it contained.
Martin Diggins is on Twitter, under the handle “@martindiggins”. He is a believer in the Canon of Western literature and culture. He was upset by the Open Letter, and on 25 October 2017 he responded by tweeting, in reply to “@Cambridge_Uni” and “@CUSUWO” these words (“the Tweet”):-
“Read it. Now; refuse to perform cunnilingus on shrill negroids who will destroy an academic reputation it has taken aeons to build.”
These matters are before me now because of what followed. Mx Diggins is a barrister, called to the Bar by Middle Temple in 1992. In that capacity he is regulated by the Bar Standards Board (“BSB”), and subject to its Code of Conduct (“the Code”). The BSB brought proceedings against Mx Diggins before a Disciplinary Panel, alleging that the Tweet amounted to Professional Misconduct. The Panel agreed. It reprimanded Mx Diggins, and fined him £1,000. He now exercises his right of appeal to this Court, under s 24 of the Crime and Courts Act 2013 and PD52D 27.1A. He appeals against the finding of misconduct, and the sanction.
The proceedings below
On 26 October 2017, the day after the Tweet, Middle Temple referred to the BSB a complaint that Mx Diggins had used his Twitter account, linked to his personal website, to post a racist and sexually explicit slur against a young black Cambridge student.
On 13 December 2017, the BSB decided to conduct an investigation into whether, in the Tweet, Mx Diggins had “used racist and sexist language … contrary to CD5” of the BSB Handbook. This was a reference to Core Duty 5, which provides that
“You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession…”.
The BSB undertook an investigation, in the course of which it wrote to Mx Diggins for a response. He provided a detailed response on 25 January 2018, with some attachments.
On 7 June 2018, having considered the material before it, the BSB's Professional Conduct Committee decided that the complaint should form the basis of a charge before a three-person Disciplinary Tribunal of the Council of the Inns of Court (“COIC”). The charge was of “Professional misconduct, contrary to Core Duty 5”, the Particulars being that
“Martin Diggins, an unregistered barrister, behaved in a way which is likely to diminish the trust and confidence which the public places in him or in the profession, contrary to CD5 in that on 25 October 2017 he tweeted …”
the words set out at paragraph 2 above. An unregistered barrister is one who does not hold a practising certificate.
On 26 September 2019, there was a hearing before a 3-person Disciplinary Tribunal of the Council of the Inns of Court, Chaired by Jonathan Glasson QC. The BSB was represented by Mr Simon Clarke, who also represents it on this appeal. Mx Diggins, who acts in person before me, was represented before the Panel by Mark Simpson QC, acting pro bono publico under the scheme operated by BTAS (the Bar Tribunals and Adjudication Service).
Before the Panel were the Tweet, the Open Letter, a small number of other documents relating to the BSB investigation and charging decision, and some correspondence, including Mx Diggins' letter of 25 January 2018. It was not in dispute that the words complained of were in fact those of Mx Diggins; that he published them in the Tweet; that the Tweet contained a URL that, if followed, took the reader to Mx Diggins' website, which identified him as a barrister; and that he did not thereafter withdraw, delete or cancel the Tweet.
The advocates lodged succinct written Opening Notes, and made oral closing submissions.
The BSB submitted that the Panel's approach to the interpretation of the Tweet should be the one adopted by the Supreme Court in Stocker v Stocker [2019] UKSC 17 [2019] 2 WLR 1033 [25–26] and [42–45] (approving observations of mine in Monroe v Hopkins [2017] EWHC (QB) [2017] 4 WLR 68 [35] and of Nicklin J in Monir v Wood [2018] EWHC (QB) 3535 [90] and [92]). Some key features of that approach, as it applies to the present case, can be extracted from paragraphs [41–44] of the judgment of Lord Kerr (with whom all the other Justices agreed):
“The judge tasked with deciding how a …tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such … tweets are made and read.
… it is wrong to engage in elaborate analysis of a tweet … this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and … is pre-eminently one in which the reader reads and passes on.
… Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly. … The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.”
The BSB's case was that, applying that approach, the Panel should conclude that the ordinary reasonable reader would read the tweet as “a personal attack upon an individual, using gender and perceived racial-characteristics-based language to convey what is a race and gender-based insult”. Read in that way, it was said, the Tweet was likely to diminish the trust and confidence placed by the public in Mx Diggins as a barrister, and in the profession, because
“the public expects, and trusts, the profession and its individual members to exercise judgment, restraint and a proper awareness of the feelings of others – it does not expect barristers to use offensive race and gender-based language in public utterings …”
Mr Simpson QC submitted on Mx Diggins' behalf that the proceedings before the Panel were ill-conceived, and should be dismissed, for three main reasons: (1) the Tweet was part of Mx Diggins' private life, unrelated to his public or professional life, and fell outside the scope of the Code; (2) in the eyes of an ordinary reasonable person the Tweet would not, in any event, diminish trust and confidence in the profession or Mx Diggins as a barrister; alternatively (3) the Tweet fell short of the threshold of seriousness that must be crossed before a finding of professional misconduct is made; it was not “particularly grave”.
In support of the first submission, Mr Simpson relied on passages from the guidance in the BSB Handbook. One passage was in gC25, which contains a non-exhaustive list of “conduct which is likely to be treated as a breach of … CD5”. The relevant item in this list was no 4: “seriously offensive or discreditable conduct towards third parties”. Mr Simpson submitted that the Tweet failed that test. He also relied on gC27, which contains a non-exhaustive list of conduct which “is not likely to be treated as a breach of … CD5” (my emphasis). The relevant item here was no 2: “your conduct in your private or personal life, unless this involves (a) abuse of your professional position; or (b) committing a criminal offence, other than a minor criminal offence.”
In support of his second submission, Mr Simpson agreed that the Panel should approach the case in accordance with the guidance in Stocker v Stocker. But he pointed out that Lord Kerr had also cited with approval some remarks of Eady J made eleven years earlier in Smith v ADVFN plc [2008] EWHC 1797 (QB), a case about bulletin boards:-
“14. … Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’.
…
16. People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”
Mr Simpson's third submission was founded on the well-known decision of the Visitors to the Inns of Court, given by Sir Anthony May on 19 September 2013 in Walker v Bar Standards Board PC 2011/0219. The Visitors held that the courts had been “astute to differentiate the isolated, albeit negligent, lapse from acceptable conduct from the serious kind of culpability which attracts the opprobrium of a finding of professional misconduct.” They said this:
“11. …consistent authorities … have made clear that the stigma and sanctions attached to the concept of...
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