Private life and social media: what role for the Bar Standards Board?

In this article, Amanda Savage KC and Marie-Claire O’Kane discuss the Bar Standards Board (“BSB”) recently published guidance on barristers’ use of social media and the related topic of regulation of non-professional conduct which will be of interest to those practising in the regulatory sector and to the profession more generally.

In respect of the use of social media, the guidance is clear that the BSB may consider taking action where a barrister’s conduct on social media is such that it is potentially in breach of the BSB Handbook. The emphasis is heavily on the manner in which views are expressed, as distinct from the substance of the views held (however unpopular they may be), save where regulatory action is justifiable in light of dishonest or discriminatory content. This reflects the approach taken to date in authorities such as Diggins v Bar Standards Board [2020] EWHC 467 (Admin) concerning  a barrister who tweeted an offensively worded message in response to an open letter posted on Twitter by a student to her university about “the need for the faculty to decolonize its reading lists.” Mr Justice Warby dismissed the barrister’s appeal against the findings of misconduct made against him, noting (amongst other matters) that he was not persuaded that the disciplinary panel was shown to have taken an unduly narrow view of the appellant’s Article 10 right to freedom of expression.

The guidance is clear that the use of social media outside a barrister’s professional life may trigger regulatory action, in particular in respect of Core Duty 5: “You must not behave in a way which is likely to diminish the trust and confidence in which the public places in you or in the profession” and Rule C8 “You must not do anything which could reasonably be seen by the publish to undermine your honesty, integrity (CD3) and independence (CD4).”

Further, non-public posts or comments visible only to a limited audience may also amount to a potential breach of the BSB Handbook “because there is a risk they could resurface or be shared more widely than intended (such as through saving or screenshotting)”.  Notably, the examples given of the types of conduct on social media that may amount to a breach of the BSB Handbook include “Comments about judges, the judiciary, or the justice system which involve gratuitous attacks or serious criticisms that are misleading and do not have a sound factual basis.”

The guidance sets out four points which the BSB will take into account when assessing whether conduct on social media may be in breach of the Handbook:

1. How a hypothetical, ordinary, reasonable person would be likely to respond to the conduct, having regard to the wider context in which it occurred.
2. The substance of the post – including the type of speech engaged, such as whether it is “mere gossip” or contributes to a debate in the public interest.
3. The manner in which the views are expressed (including the language used), the mode of publication, and the broader context.
4. The impact of the conduct in question.

The guidance on non-professional conduct emphasises that whilst the BSB’s key interest is in barristers’ conduct in their course of their professional activities, the BSB Handbook standards of conduct nonetheless apply to barristers at all times. The guidance aims to shed light on circumstances in which the BSB are likely, in principle, to have a regulatory interest in conduct outside professional activities.

The general principles articulated in the guidance include:

1. Whilst barristers are not to be viewed as “paragons of virtue” barristers are nevertheless held to a higher standard of conduct than ordinary members of the public.
2. Members of the public must feel able to access an independent, strong, diverse and effective profession.
3. When a barrister’s conduct in their non-professional life is incompatible with the high standards the public expects of them, the BSB may take regulatory action.
4. The closer the non-professional conduct is to professional practice, the greater the justification for regulatory action is likely to be. However, the BSB may have a regulatory interest where the nature of the conduct is so serious that it is capable of diminishing public trust and confidence in the barrister or the profession, regardless of the context and environment.
5. The BSB is unlikely to have a regulatory interest where it receives information about conduct in a barrister’s personal or private life “which has little or no impact on their professional practice, or on public trust and confidence in the profession.”

When considering whether it has a regulatory interest in non-professional conduct, the first question the BSB will ask is whether the barrister has been charged with, convicted of or accepted a caution for relevant criminal conduct (other than a minor criminal offence). For all other conduct, the BSB will ask “Is the conduct sufficiently relevant or connected to the practice or standing of the profession such that: (a) it is likely to diminish public trust and confidence in the barrister or the profession and/or (b) it could reasonably be seen by the public to undermine the barrister’s honesty, integrity or independence?”

In considering this question, the BSB will take into account (a) the nature of the alleged conduct; and (b) the context and environment in which the conduct is said to have occurred.

The guidance sets out various case studies applying these criteria, including:

• A report about a barrister who sexually assaulted another person at a nightclub after work hours, which had not been reported to the police and in respect of which no charges had been brought. Whilst the alleged conduct occurred outside of the barrister’s practice, according to the guidance, the nature of the conduct is so serious that it is likely to be considered sufficiently relevant or connected to the standing of the profession such that Core Duty 5 and Rule C8 might be engaged.
• A report about a barrister arrested on suspicion of aggravated trespass during a climate change protest, in which it was clear from press coverage that the barrister had identified their professional status during the protest. Given the nature of the conduct (a political protest) which occurred in the context of the barrister exercising their Article 10 and 11 rights, the guidance indicates that it is unlikely that such conduct would be sufficiently relevant or connected to the standing of the profession and that the BSB is unlikely to have a regulatory interest in the matter.

It remains to be seen if the new guidance is indicative of any trend in an increase in BSB prosecutions relating to barristers’ private lives and social media usage and how what is, at least on one view and in part, an essentially subjective test, will be applied. Barristers will no doubt wish to familiarise themselves with the detail of this new guidance, which may reach further into non-professional life than many might expect.

© Amanda Savage KC and Marie-Claire O’Kane of 4 New Square Chambers, October 2023

This article is not intended as a substitute for legal advice. Advice about a given set of facts should always be taken.