Tribunal could disbar lawyer over interview
A Bar Council disciplinary hearing will decide whether to penalise a civil rights lawyer because of remarks he made to The Independent
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Two years after Peter Herbert picked up his telephone to answer The Independent's questions about his client's allegations of race discrimination against the Crown Prosecution Service, his career prospects have been put under serious threat.
This week, a Bar Council disciplinary tribunal will begin a hearing to decide whether his statements were personal opinions – and therefore in breach of the Bar's code of conduct – or simply repetition of the evidence in the case in which he was acting and therefore already in the public domain.
If the tribunal rules against the 44-year-old barrister, the Bar Council has the power to fine him or, at the most extreme, strip him of his right to practise law. It would be the first time any lawyer has been disciplined for speaking to the media.
This is not the first time Mr Herbert, who has been highly critical of his profession's record on race, has come under the Bar's scrutiny. A number of judges are understood to have complained about Mr Herbert's attempts to raise race issues in court cases.
Despite all this, he has succeeded in forging a successful career as a civil rights and race rights activist. Last year, Jack Straw, as Home Secretary, interviewed him for the chairmanship of the Commission for Racial Equality. Although not appointed, Mr Herbert has gone on to become deputy chairman of the Metropolitan Police Authority as well as a member of the Attorney General's race advisory committee.
Mr Herbert, whose head of chambers is the civil rights barrister Michael Mansfield QC, denies breaching the code, maintaining that all he was doing was repeating the evidence that had already been heard by an employment tribunal in 1999.
Solicitors, unlike barristers, are not subject to a blanket ban on commenting on a client's case. A Law Society spokesman said that, as long as what was said was not in contempt of unfinished proceedings, there was nothing to stop a solicitor expressing an opinion.
Lawyers for Mr Herbert argue that, under the European Convention on Human Rights, any ban on freedom of expression must be justified on the basis of "protecting the rights of others." His barrister, Sigbat Khadri QC, will argue that a case brought by Observer and Guardian Newspapers against the United Kingdom at the court in Strasbourg in 1991 renders the Bar's policy "highly questionable".
A Bar spokesman declined to disclose the arguments it would use on Thursday but said the proceedings had gone before a full tribunal because of "disagreements" over the facts. A circuit judge has been appointed to chair the disciplinary panel, as well as a leading QC to advise the Bar on human rights issues. Another barrister will appear on behalf of the Bar.
Some observers believe the case and Mr Herbert's high profile will provoke a wider discussion on race in the profession. Raj Joshi, an adviser on issues of equal treatment to the Judicial Studies Board, which trains judges, said: "This kind of prosecution sends the wrong message to the public about the Bar, especially as there is clear evidence that racism in the legal profession has not been properly addressed."
The National Assembly Against Racism is also concerned about how the case might highlight the issue of race at the Bar. A spokeswoman said: "We are aware there are many chambers in London where they have never had an African-Caribbean or Asian tenant. We will be conducting our own investigation into racism at the Bar and referring our findings to the Mayor of London and the chair of the Commission for Racial Equality."
Only recently did the Bar decide to open its tribunals to public scrutiny but notification of these hearings is restricted to the Inns of Court. This means that, while the hearings are public in principle only, barristers know when they are taking place.
The Bar has come under increasing pressure from the Government to change those of its ancient traditions that do not serve the public interest. This year the Office of Fair Trading published a report recommending the reform of many of the Bar's restrictive practices so that the public would receive a better deal from barristers.