2022-07-26 17:59:21
We have reported on recent cases involving words published on social media and the tension between the requirement to behave professionally at all times and the right to freedom of expression.
In Kwiatkowski v Bar Standards Board [2022] EWHC 1800 (Admin), a senior barrister was found guilty of misconduct by a Disciplinary Tribunal. Mr Kwiatkowski is a senior barrister. While in a public waiting area at Worthing County Court, he had a conversation with a female barrister who was representing his client’s opponent. He referred to a witness statement by a female legal executive, filed on behalf of his client’s opponent. He described the witness statement as that of “a hysterical woman” and said words to the effect of:
“I have been practising since before the century. When more women joined the profession, the ground shifted. You do get stupid and unreasonable men in the profession but the ground shifted. The number of incidents of over egging the pudding and just going overboard in a routine situation multiplied”
The Tribunal find Mr Kwiatkowski £500. He appealed against the Tribunal’s decision, Mr Kwiatkowski. Amongst other things, he argued (1) that his right to freedom of expression had been infringed; (2) that the obligation to behave professionally had not been breached because no member of the public was present to overhear his words; (3) the word “hysterical” was not a term of abuse.
Mr Justice Choudhury held that the right to freedom of expression was a qualified one, subject to necessary and proportionate limitations. He held that the appellant’s argument failed to comprehend that public confidence in barristers and the professin required protection. The judge held that whether the conduct was likely to diminish trust and confidence in the barrister or the profession was an objective test. There was no requirement that nay particular member of the public was shown to have actually lost trust and confidence. The Tribunal had to assess how a hypothetical ordinary member of the public within earshot would be likely to view the conduct in question. In this case, the evidence was that members of the public, including a court usher, were present when the offending remarks were uttered.
In relation to the appellant’s argument that the Tribunal had been wrong to find his words as “sexist” because the term is not defined and it would open the door to a highly subjective assessment of what constitutes sexist conduct, the judge said:
“Whilst it may be true that some conduct might be said to fall on the borderline as to what is “sexist”, language that perpetuates well-known negative gender stereotypes or which unequivocally depicts women as generally inferior to men or as being the
cause of a drop in standards across the legal profession can, uncontroversially and without the need for further definition, be described as ‘sexist and discriminatory’.
The judge rejected an argument that the use of the word “hysterical” was trivial and inconsequential, saying:
“The term represents a disparaging gender-based stereotype: that of a woman overreacting to a situation because of an inability to contain her emotions. It is undoubtedly an offensive epithet when used in the way that it was. The fact that the word “hysterical”may be applied to some men does not diminish its discriminatory character when applied to a woman in the way that the appellant applied it. If the term had been used in a way that could be characterised as an uncharacteristic lapse or an accidental slip during an unguarded moment, then, on its own, the remark might not have crossed the line into serious professional misconduct. However, that was not how it was used. Instead, its use was the first of four distinct statements made by the appellant, each of which was offensive and demeaning about and towards women.”
The judge described the comments about what happened in the profession after more women joined it as “an unambiguous slur on women’s abilities within the legal profession. It is about as close as one can get to stating that women are inferior without stating it in those precise terms.”
In another case involving unprofessional comments, the Professional Standards Authority and the General Medical Council appealed against a decision of the Medical Practitioner Tribunal that the fitness to practise of doctors in a WhatsApp group was not impaired. The doctors exchanged numerous messages that were offensive, racist discriminatory, and disrespectful towards women, disabled people and people who are LGBTQ. One doctor also shared extreme pornographic images. No patients were discriminated against. The appeal was settled with agreement that the medical practitioners would be given warnings that would be placed on the medical register for two years. https://www.professionalstandards.org.uk/news-and-blog/latest-news/detail/2022/06/08/warning-approved-by-high-court-in-whatsapp-case