THE task of advocates is to be argumentative, inquisitive, indignant or apologetic — as the occasion demands — and always persuasive on behalf of the person who pays for their voice. With impunity and with immunity, counsel can and do exercise this broad freedom of expression on behalf of clients to criticise the blameless, to condone the unspeakable, and to accuse otherwise respectable witnesses of being liars. But a puzzling decision by the Bar Council last month limits the freedom of expression of barristers to express opinions out of court in support of the client’s cause.
In 2002 Carole Baptiste, a social worker, was convicted at Camberwell Green Magistrates’ Court, South London, of ignoring a summons to give evidence to the inquiry chaired by Lord Laming into the death of Victoria Climbié. The eight-year-old child died in February 2000 after being tortured and starved by a great-aunt and her boyfriend, who were convicted of murder. Ms Baptiste was a manager with Haringey council and was responsible for supervising the inexperienced social worker in charge of Victoria’s case. The summons requiring Ms Baptiste to give evidence followed more than six months of failed attempts by inquiry staff to obtain her assistance. District Judge Hayden Gott rejected Ms Baptiste’s defence that her failure to attend the inquiry was due to a mental illness. He fined her £500.
Ms Baptiste was represented by Peter Herbert. After the hearing, outside the court, the barrister spoke to reporters and contrasted the treatment of his black client with the treatment of the five white men accused of murdering Stephen Lawrence. Mr Herbert complained that those men “attended an inquiry, committed perjury and were never prosecuted to this day and it stands in very great contrast to the way this black woman has been hounded over recent months and treated by the system ”. The next morning, Mr Herbert gave an interview to the Today programme on BBC Radio 4. He criticised the prosecution of his client as “overkill” and accused Lord Laming of using “a sledgehammer to crack a nut”.
Lord Laming complained to the Bar Council, which brought a disciplinary charge against Mr Herbert. Paragraph 709 of the Bar’s code of conduct states: “A barrister must not in relation to any anticipated or current proceedings in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.” There is an exception for expressing an opinion “in an educational or academic context”.
The Bar Council’s disciplinary committee found that Mr Herbert had breached the code of conduct. It reprimanded him and warned him as to his future conduct. The response of Mr Herbert (who is black) was to describe the Bar Council as “viciously racist” and to announce that he would be bringing legal proceedings for racial discrimination. As any lawyer knows, the best point is not necessarily the one about which the client shouts the loudest. Mr Herbert’s confident assertion that both Ms Baptiste and himself were unfavourably treated on the ground of their race is less than convincing, but the decision to find him guilty of a disciplinary offence is nevertheless troubling.
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Mr Herbert’s first defence is that his comments in 2002 were not a “personal opinion”. He says that he was expressing the views of his client and repeating the submissions that he had made in court. His problem is that his comments included the words “I think” and “I believe”.
His second defence is stronger. Paragraph 709 applies only to “current” proceedings. When Mr Herbert spoke to the press, the proceedings had ended. Ms Baptiste had told him that she had no intention of appealing. The Bar Council has published guidance telling barristers that they should keep their views to themselves until the time limit for lodging an appeal has expired. This is unsustainable. If the Bar Council recognises (as it does) that once a case is concluded there is no justification for preventing barristers from speaking their mind (so long as they do not breach a confidence) it is impossible to understand how it can be necessary to impose a sanction on a barrister who spoke at a time when particular proceedings had ended.
The Bar Council also warns counsel that they “should be careful” not to make comments that “bring the administration of justice into disrepute”, for example by the use of “inflammatory language”. But barristers, like all other members of society, enjoy a right to freedom of expression. A professional body should be slow to impose sanctions on lawyers for speaking their mind, however foolishly, after a case has finished, provided that they obey the general law of the land. When barristers take off the wig and gown, they should not be obliged to put on a gag.
The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford