2022/1204/D3

BAR TRIBUNAL AND ADJUDICATION SERVICE

B.S.B.
-v-
DR CHARLOTTE PROUDMAN
______________________________________

RULING ON
RESPONDENT’S APPLICATION TO
STRIKE OUT
_________________________________________

1. Dr Proudman faces four disciplinary charges brought by the Bar Standards Board alleging
various breaches of the duties pursuant to the Bar Code of Conduct, including Core Duty 3,
Core Duty 5, rC8 and rC9.

2. These charges are founded upon a series of tweets made by Dr Proudman on 6 April 2022 in
which she made comment about the judgment of Cohen J in the case of Trehane v Limb in
which Dr Proudman was instructed. It is asserted by the Bar Standards Board that those tweets
were misleading and insulting to the judge to the extent that it amounts to breaches of the duties
set out above. For the purposes of this ruling it is assumed that Dr Proudman either sent those
tweets herself or authorised them to be sent to the extent that she has adopted them. Certainly
within submissions before me there appeared to be no suggestion to the contrary. Both the
tweets that form the substance of the charges and other additional tweets in the same exchange
which the Respondent maintains provide necessary and appropriate context are set out in
Appendix B to the Respondent’s skeleton argument.

3. Those charges were considered and approved by the Independent Decision Making Panel on
28 February 2023. That decision and the resulting charge sheet was communicated to Dr
Proudman by letter on 3 March 2023.1

4. By notice dated 8th March 2024, Dr Proudman filed an application pursuant to rE127.2 to strike
out the charges.2 The Notice was inevitably brief, not purporting to be a full skeleton argument,
but simply providing notice of the heads of complaint to be relied upon, in particular:

a. An abuse of process, and/ or

b. Breaches of Art 6 and art 14 of the ECHR, and/or
c. Breaches of the Equality Act 2010

5. There is considerable overlap within these three heads of complaint in that the underlying
argument is that these proceedings arise out of either direct or indirect discrimination by the
BSB of Dr Proudman based upon her protected characteristics, in particular her sex and her
beliefs (feminism) and that the prosecution of her by the BSB amounts to an abuse of process,
and/ or breach of the Human Rights Act 1998/ ECHR, art 6 and art 14, and/ or breach of the
Equality Act 2010, harassment and/ or breach of the Public Sector equality duty.

6. The original notice of application to stay dated 8 March 2024 was very considerably added to
be a detailed 64 page Skeleton argument dated 28 August 2024 some 11 days before the oral
hearing and re-served with amendments on 8 September 2024, the day before the hearing.

1
Respondent Evidence Bundle pp446-456
2
Respondent Evidence Bundle pp 6-7.

1
7. The BSB filed its skeleton argument on 3 September 2024.

8. Oral submissions were heard on 9-10 September 2024.

9. Legal Services Act 2007, section 1 ‘The regulatory objectives’ provides inter alia

(1) In this Act a reference to “the regulatory objectives” is a reference to the objectives of—

(a) protecting and promoting the public interest;

(b) supporting the constitutional principle of the rule of law;

(c) …

(d) …

(e) …

(f) encouraging an independent, strong, diverse and effective legal profession;

(g) …

(h) promoting and maintaining adherence to the professional principles;

10. Legal Services Act 2007, section 28(2)(a) ‘Approved regulator’s duty to promote regulatory
objectives etc’ provides

(1) In discharging its regulatory functions (whether in connection with a reserved legal
activity or otherwise) an approved regulator must comply with the requirements of this
section.

(2) The approved regulator must, so far as is reasonably practicable, act in a way—

(a) which is compatible with the regulatory objectives, and

(b) which the approved regulator considers most appropriate for the purpose of meeting
those objectives.

(3) The approved regulator must have regard to—

(a) the principles under which regulatory activities should be transparent, accountable,
proportionate, consistent and targeted only at cases in which action is needed, and

(b) any other principle appearing to it to represent the best regulatory practice.

11. It follows that the BSB in carrying out its functions, including its disciplinary function is subject
to these duties.

12. At the heart of the Respondent’s case, it is argued that these proceedings are brought about as
a result of either direct or indirect discrimination against her on the basis of her protected

2
 characteristics (sex and beliefs [feminism]) and that if that is established it taints the entirety of
the regulatory prosecution against her. As indicated above this argument is presented under a
variety of heads. It is not necessary that the Respondent’s case should succeed under each and
every head. If any of those heads of argument succeed to the extent of making the matter a live
issue in these proceedings, then this Tribunal is duty bound to consider and adjudicate upon
that issue.

EQUALITY ACT 2010

13. Religion and belief and Sex are protected characteristics.3 The protection that is granted to
beliefs includes feminism, subject to various criteria being found, including for example that
such belief is genuinely held.4 The Respondent can be described as a practising lawyer, and
academic and an activist (to be clear, I use that word descriptively and not in any sense
pejoratively). She is especially interested in promoting the advancement of women’s rights and
protections in various ways on matters of domestic abuse and sexual violence. She is eminently
qualified to do so and there can be no doubt that her beliefs are genuine. She is entitled to act
upon these beliefs and speak and act in support of them, and robustly so, if she so chooses. The
right to do so is itself protected.5 However, her right to do so is subject to those limitations or
obligations and duties that she has voluntarily accepted upon herself by virtue of her profession
and its regulatory regime and code of conduct, in particular its core duties and its conduct rules
which both apply to all BSB regulated persons.6

14. The question arises whether alleged breaches of the Equality Act 2010 are justiciable within the
Bar Tribunal.

15. Equality Act 2010, s113 ‘Proceedings’

(1) Proceedings relating to a contravention of this Act must be brought in accordance with
this Part.

(2) Subsection (1) does not apply to proceedings under Part 1 of the Equality Act 2006.

(3) Subsection (1) does not prevent—

(a) a claim for judicial review;

(b) proceedings under the Immigration Acts;

(c) proceedings under the Special Immigration Appeals Commission Act 1997;

(d) in Scotland, an application to the supervisory jurisdiction of the Court of Session.

(4) This section is subject to any express provision of this Act conferring jurisdiction on a
court or tribunal.

(5) The reference to a contravention of this Act includes a reference to a breach of an equality
clause or rule.

3
Equality Act 2010, sections 4, 10 and 11
4
Grainger plc v Nicholson [2010] IRLR 4, Forstater v CGD Europe and Others [2021] IRLR 706
5
Higgs v Farmor’s School (No.3) [2023] IRLR 708
6
BSB Handbook, v4.8 Part 2 Application, rC1, rC2

3
 (6) Chapters 2 and 3 do not apply to proceedings relating to an equality clause or rule except
in so far as Chapter 4 provides for that.

(7) This section does not apply to—

(a) proceedings for an offence under this Act;

(b) proceedings relating to a penalty under Part 12 (disabled persons: transport).

16. Section 15(1) is expressed in mandatory terms (‘must’). It then goes on to set out a range of
exceptions. It is clearly a considered regime for the application and determination of disputes
relating to the rights conferred by the act. The Bar Tribunal is not a regime empowered under
the 2010 Act to determine claims made pursuant to it. EA 2010, section 15 is added to by
section 114 which sets out the jurisdiction of the civil courts and section 120 which sets out the
jurisdiction of the Employment Tribunal. Based upon this, Ms McColgan KC for the BSB
submits that the entirety of the Equality Act 2010 regime is out with the competence of the Bar
Tribunal to consider and resolve. In addition, she prays in aid of that submission the
complexities of attempting to undertake any such determination. I shall return to that point
later.

17. Ms Padfield KC for the Respondent submits that it is wrong to say that the Bar Tribunal is
excluded by the 2010 Act from determining acts of discrimination. In support of this
proposition she points to rC12 which provides that [a barrister] must not discriminate
unlawfully against, victimise or harass any other person on the grounds of …sex, … religion or
belief… .’ Ms Padfield also points out that the definition of discrimination given in this rule
matches the definition provided by the Equality Act 2010. On this basis, she submits that
discrimination under the Equality Act 2010 is justiciable at the Bar Tribunal. I do not agree.

18. I remind myself of the purpose of the professional regulatory regime. It is to regulate the
conduct of the regulated person. In other words, should a barrister be accused of acting in a
discriminatory way then, subject to due process of investigation, Independent Decision Making
Panel approval of charges, laying of charges the alleged discriminatory behaviour of that
regulated barrister pursuant to those charges is indeed a matter which the Bar Tribunal may
assess and determine, no doubt assisted by the application of the principles set out in the
Equality Act. That is not the situation here.

19. In this matter, the Respondent is asserting that the BSB has acted in a discriminatory way and
therefore seeks a remedy to that alleged discrimination under, in part, the Equality Act. In these
circumstances, the Equality Act 2010 ss113, 114 and 120 are clear. Jurisdiction is not granted
to the Bar Tribunal.

20. This finding also disposes of the Public Sector Equality duty argument under the 2010 Act,
section 149 and the Harassment argument under the 2010 Act sections 53(3) and 26. In any
event, I am not satisfied that merely initiating proceedings against a regulated person is capable
of amounting to harassment.

21. However, for the reasons set out below, that is not the end of the matter.

CORE STANCE OF THE PARTIES

22. The difference of position between the parties in this application can be stated as follows:

4
 a. The BSB contends for the narrow view. Ms McColgan argues that the only question
that needs to be considered is whether on the evidence as it stands a tribunal properly
directed could come to a finding of a breach in each/ any of the specific charges before
it in this case.

b. The Respondent contends for the wide view. Ms Padfield argues that if the foundation
of the decision to investigate and charge was itself based on discrimination (either
direct or indirect) then that is such egregious conduct that it amounts to breach of HRA/
ECHR Art 6 and 14, and or an abuse of the process of the tribunal such that it ought to
stop the proceedings and/ or result in a dismissal of the proceedings. To support the
wider view, Ms Padfield argues that it is necessary to look beyond the specific charges
laid against the Respondent and look at the wider contextual material of how the BSB
has conducted itself regarding complaints made by Dr Proudman against other
regulated barristers, mostly male, and at other complaints against Dr Proudman
which have not been proceeded with by the BSB. It is contended that a proper
analysis of such evidence will demonstrate the discrimination complained of.

23. The is considerable overlap between the HRA1998/ ECHR arguments and the Abuse of Process
arguments. I shall deal first with the issues of whether either or both of these regimes may be
heard by the Bar Tribunal.

APPLICABILITY OF THE HUMAN RIGHTS ACT 1998/ ECHR

24. There is no challenge to the proposition that the Bar Tribunal is an independent judicial body.
The rules of natural justice apply.

25. Human Rights Act 1998, section 6 ‘Acts of public authorities’

(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not
have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which
cannot be read or given effect in a way which is compatible with the Convention
rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in
connection with proceedings in Parliament.

(4) …

5
 (5) In relation to a particular act, a person is not a public authority by virtue only of
subsection (3)(b) if the nature of the act is private.

(6) “An act” includes a failure to act but does not include a failure to—

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.

26. Both the BSB and the Bar Tribunal are a public authorities. It is unlawful for either to act in a
way which is incompatible with a Convention Right.

27. Article 6 provides the right for a fair trial.7

28. Article 14 prohibits discrimination.8

29. When do these rights bite? The BSB asserts that the art 6 right does not bite until point of
charge, i.e. 3 May 2023. It argues that as much of the material that the Respondent wishes to
introduce to prove discrimination predates that date of charge and is therefore irrelevant.

30. The authorities are clear that art 14 rights do not have a freestanding status but are parasitic
upon other rights, including the article 6 fair trial right.

31. I have been helpfully referred to a line of authorities that may be usefully tagged as ‘ambit
cases’.

32. O’Connor v BSB [2014] EWHC 4324 (QB) per Warby J:

‘69. The BSB accepts however that the disciplinary proceedings brought before the Tribunal
do fall within the scope of Article 6. The approach to be taken to determining the “ambit” of a
Convention right for the purposes of Article 14 was considered in R (Clift) v Home Secretary
[2007] 1 AC 484, a case concerned with Articles 5 and 14, where Lord Bingham cited at [12]
the following passage from Stec v United Kingdom (2005) 41 EWHRR SE 295 as a summary
of the well-established jurisprudence:

“38. The court recalls that article 14 complements the other substantive provisions of the
Convention and the Protocols. It has no independent existence since it has effect solely in
relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions
(see, amongst many authorities, Sahin v Germany (2001) 36 EHRR 765 , para 85). The
application of article 14 does not necessarily presuppose the violation of one of the
substantive rights guaranteed by the Convention. It is necessary but it is also sufficient
for the facts of the case to fall ‘within the ambit’ of one or more of the Convention
articles (see, among many other authorities, Abdulaziz, Cabales and Balkandali v United
Kingdom (1985) 7 EHRR 471 , para 71; Schmidt (Karlheinz) v Germany (1994) 18
EHRR 513 , para 22; and Petrovic v Austria (1998) 33 EHRR 307 , para 22).”

70. Lord Bingham explained at [13] that: “Plainly, expressions such as ‘ambit’, ‘scope’ and
‘linked’ used in the Strasbourg cases are not precise and exact in their meaning. They denote a
situation in which a substantive Convention right is not violated, but in which a personal

7
HRA 1998, Schedule 1
8
ibid

6
 interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M [v
Secretary of State for Work and Pensions [2006] 2 AC 91] at para 14, for a value judgment.
The court is required to consider, in respect of the Convention right relied on, what value that
substantive right exists to protect.”

71. At [14] Lord Bingham identified the core value which Article 5 exists to protect as the
fundamental right to liberty and personal security. Ms Padfield submits that the core value
protected by Article 6 is the right to a fair trial, a fair determination of rights, obligations and
criminal charges, and that its ambit does not extend to decisions on whether a person should
or should not be prosecuted. Put another way, and not in Counsel’s words, the submission is
that the value protected by Article 6 is due process and not equal treatment in the
determination of rights and obligations.

72. I find this an unattractive submission which, if right, would seem to lead to some
unfortunate conclusions. On this view a policy of granting BME barristers less time to prepare
their defence than other groups would, at least in the more serious disciplinary cases which
engage Article 6, involve a breach of Article 14 whereas a deliberate policy of “prosecuting”
predominantly BME barristers in such cases would involve no breach, provided all were
treated alike procedurally. I am disinclined to accept such an argument. There is much to be
said for the view that the fair and impartial application of laws and rules to those in relevantly
similar situations is an integral part of the notion of procedural fairness which Article 6 exists
to safeguard. This however is a point of law of some considerable importance the argument
on which has not been very fully developed on this appeal. For that reason, I confine myself
to holding that the appellant’s contention that the BSB’s conduct in prosecuting her before the
Tribunal falls within the ambit of Article 14 is not fanciful.’

33. Stec v United Kingdom (2005) 41 E.H.R.R. SE18

‘38. The Court recalls that Art.14 complements the other substantive provisions of the
Convention and the Protocols. It has no independent existence since it has effect solely in
relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions
(see, amongst many authorities, Sahin v Germany [GC]: (2003) 36 E.H.R.R. 43 at [85]).
The application of Art.14 does not necessarily presuppose the violation of one of the
substantive rights guaranteed by the Convention. It is necessary but it is also sufficient
for the facts of the case to fall “within the ambit” of one or more of the Convention
Articles (see, among many other authorities, Abdulaziz v United Kingdom: (1985) 7
E.H.R.R. 471 at [71]; Schmidt (Karlheinz) v Germany: (1994) 18 E.H.R.R. 513 at [22];
and Petrovic v Austria: (2001) 33 E.H.R.R. 14 at [22]).

39. The prohibition of discrimination in Art.14 thus extends beyond the enjoyment of the
rights and freedoms which the Convention and Protocols require each state to guarantee.
It applies also to those additional rights, falling within the general scope of any
Convention article, for which the State has voluntarily decided to provide. This principle
is well entrenched in the Court’s case law.’

34. Schmidt v Germany (1994) 18 E.H.R.R. 513

‘22. As the Court has consistently held, Article 14, complements the other substantive
provisions of the Convention and the Protocols. It has no independent existence since it
has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by
those provisions. Although the application of Article 14, does not pre-suppose a breach of
those provisions-and to this extent it is autonomous-there can be no room for its
application unless the facts at issue fall within the ambit of one or more of the latter.'

7
 23. Like the participants in the proceedings, the Court considers that compulsory fire
service such as exists in Baden-Wurttemberg is one of the "normal civic obligations"
envisaged in Article 4, section 3(d). It observes further that the financial contribution
which is payable-in lieu of service-is, according to the Federal Constitutional Court, a
"compensatory charge", The Court therefore concludes that. on account of its close links
with the obligation to serve. the obligation to pay also falls within the scope of Article 4,
section 3( d). It follows that Article 14 read in conjunction with Article 4. section 3(d)
applies.’

35. Schmidt v Sweden (1979-80) 1 EHRR 632

‘II. THE ALLEGED VIOLATION OF ARTICLES 11 AND 14 TAKEN TOGETHER

38: Article 14 is worded as follows:

The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex. race, colour. language,
religion, political or other opinion. national or social origin, association with a
national minority. property. birth or other status.

39. Despite finding no breach of Article 11. the Court must ascertain whether the difference
in treatment, characterised by the applicants as discriminatory, infringed Articles 11 and
14 taken together. While the granting of retroactivity of salary increases or other benefits
in itself falls outside the scope of Article 11 (I) (et. para. 34 above). in the present
circumstances it is linked to the exercise of a right guaranteed by the said provision. namely
the freedom to protect the occupational interests of trade union members by trade union
action. The Swedish State has in fact selected collective bargaining. the concluding of
collective agreements and the recognition of the right to strike as three of the means of
making possible the conduct and development of such action by trade unions in both the
public and private sectors. Moreover. it was in the wake of a strike. following bargaining
and within the framework of a collective agreement that the Office adopted the conduct
complained of by the applicants. Accordingly, Article 14 is pertinent in the present context.
In connection with both this question and the criteria to be adhered to. the Court refers to
the judgments it delivered in the BELGIAN LINGUISTIC case ~ and, subsequently, in the
NATIONAL UNION OF BELGIAN POLICE case.'

36. The BSB resists the proposition that Art 14 can be properly be regarded as within the ambit of
Art 6, and, even if it is to be so regarded that that art 14/ art 6 relationship cannot be extended
back beyond the point of charge which is where art 6 ordinarily engages. The BSB go further
and argues that even if there can be a reach beyond the point of charge it cannot justifiably
reach as far back as the materials that the Respondent now wishes to introduce.9

37. Having reviewed the authorities, I am satisfied that on the facts of this case, article 14 can
properly be regarded as within the ambit of art 6 and that that relationship does have the effect
of reaching back in time to at least the materials set out in footnote 9 below (i.e. those matters
already raised by the Respondent in her detailed repose to the BSB and in the skeleton argument
of Ms Padfield KC and Ms Belgrove dated 8 September 2024. I am fortified in this conclusion

9
By which I mean:
a/ the 9 Barrister/ HHJ Linford materials
b/ the Mr Phillip Marshall KC materials
c/the Mr Mark George KC materials
d/ the materials relating to 28 other barristers directed to or about Dr Proudman on Twitter
e/ the materials relating to complaints about Dr Proudman which the BSB dismissed without
investigation.

8
 by acknowledging that discrimination is properly regarded as a deep and serious social ill that
most democratic governments have legislated to prohibit and that the ECHR itself in article 14
acknowledges the deep social harm it causes. There is overwhelming public policy/ public
interest reasons to ensure that where discrimination is said to have contaminated decisions of
public authorities and/ or judicial/ regulatory processes that that issue is litigated. As it cannot
be litigated under the Equality Act 2010 in the Bar Tribunal, as a public authority it must be the
case that the Bar Tribunal can adjudicate upon this matter itself by the application of the HRA
1998 and ECHR, since otherwise, the Respondent must embark upon a series of cases across
varying tribunals which may or may not accept or adopt the findings of others. That cannot be
right and cannot be the effect of the law.

ABUSE OF PROCESS

38. The Respondent’s arguments under this head are founded on the cases of Rv Maxwell [2010]
UKSC 48, [2011] 1 WLR 1837 and Hamilton v Post Office Ltd [2021] EWCA Crim 577.

39. It is not necessary for me to rehearse the cases in detail. In the criminal context, the court has
the power to stay proceedings where

a. It will be impossible to give the defendant a fair trial, and

b. A stay is necessary to protect the integrity of the criminal justice system.

40. In this case, the Respondent’s arguments are framed upon the second limb. Any determination
under this limb requires a balancing of competing interests.10

41. Per Lord Dyson in Maxwell:

13. … In the second category of case, the court is concerned to protect the integrity of
the criminal justice system. Here a stay will be granted where the court concludes that in
all the circumstances a trial will offend the court’s sense of justice and propriety (per
Lord Lowry in R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42,
74G) or will undermine public confidence in the criminal justice system and bring it into
disrepute (per Lord Steyn in R v Latif [1996] 1WLR 104, 112F).

14 In Latif at pp 112—113, Lord Steyn said that the law in relation to the
second category of case was settled. As he put it:

“The law is settled. Weighing countervailing considerations of policy and justice,

it is for the judge in the exercise of his discretion to decide whether there has been
an abuse of process, which amounts to an affront to the public conscience and
requires the criminal proceedings to be stayed: Reg v Horseferry Road
Magistrates Court, Ex p Bennett [1994]1AC 42. Ex p Bennett was a case where
a stay was appropriate because a defendant had been forcibly abducted and
brought to this country to face trial in disregard of extradition laws. The speeches
in Ex p Bennett conclusively establish that proceedings may be stayed in the
exercise of the judge’s discretion not only where a fair trial is impossible but also
where it would be contrary to the public interest in the integrity of the criminal
justice system that a trial should take place. An infinite variety of cases could arise.
General guidance as to how the discretion should be exercised in particular
circumstances will not be useful. But it is possible to say that in a case such as the

10
D Ltd v A [2017] EWCA Crim 1172, Archbold 2024, para 4-75

9
 present the judge must weigh in the balance the public interest in ensuring that
those that are charged with grave crimes should be tried and the competing public
interest in not conveying the impression that the court will adopt the approach that
the end justifies any means.”

42. The BSB resists this head of complaint on the basis that it is clear from the abuse of process
authorities that limb 2 cases in particular are extremely rare, that the conduct that gives rise to
a limb 2 claim is inevitably particularly egregious. It is argued that the behaviour complained
of in this case, discrimination, is not sufficiently egregious to give rise to a stay.

43. As noted above, limb 2 cases require a balance of competing interests. There is a clear public
interest in the maintenance of public confidence in the legal system, in judges, and in the legal
professionals who voluntarily take upon themselves the duties and responsibilities of their
profession, in the Bar’s case, as set out in the Code of Conduct. There is equally a public
interest in ensuring that any decisions to prosecute allegations of falling below those standards
are made properly, fairly and absent any transgressions of an individual’s rights e.g. free of
discrimination. To reach the point where any tribunal can properly make a judgment on those
competing public interests, first it will be necessary to properly litigate the point through
evidence, to make appropriate findings of facts upon that evidence, to determine whether or not
the discrimination exists and if so, to assess the extent to which that may have impacted upon
the decision to charge and whether it was sufficiently egregious to dismiss the charges or
whether it amounts to mitigation rather than a full defence to the allegations. I am not satisfied
on the state of the matters before me at this point that I am able to take those steps to the extent
of taking the exceptional decision of staying the proceedings. In short, I am not satisfied that
these matters have yet been properly litigated, though I am satisfied that the Tribunal can and
ought to entertain evidence and arguments under this head.

44. Having concluded that the issue of discrimination can and ought properly to be litigated in this
case by the Bar Tribunal, I return to my observation at paragraph 21 above. In seeking to
demonstrate that there has been an abuse of process and/ or breach of HRA 1998/ ECHR Art 6
and Art 14 rights, the definitions and principles as contained in the Equality Act 2010 are likely
to be a helpful framework of the relevant principles to be applied.

CONCLUSIONS

45. I am satisfied that absent any other meaningful venue available to the Respondent to litigate
her allegation that the decision of the BSB to initiate regulatory proceedings against her arises
out of the BSBs discrimination against her on the grounds of sex and protected beliefs
(feminism), she can and must be able to ventilate those issues before the Bar Tribunal. To rule
otherwise would effectively deny her the Art 6 and Article 14 protections. As a public body the
BSB and the Bar Tribunal are obliged to ensure the protection of those rights and would, in my
view, be acting unlawfully in preventing those matters being fully and properly assessed. The
Human Rights/ ECHR arguments and the abuse of process arguments, which are in any event
wholly interrelated, shall be heard within these proceedings.

46. I do not accept the BSB’s proposition that to do so is out with the competence of the Bar
Tribunal. Further I do not accept that to allow these matters to be litigated would be too
burdensome to the Tribunal and to the BSB. The BSB during argument made a suggestion that
a 4 week hearing estimate would be needed. There does not seem to be any basis to that
proposition. Much of the evidence, from the Respondent’s perspective, is in writing. I do not
know what evidence, if any, the BSB wish to call by way of rebuttal, but it seems
overwhelmingly likely that it will be written materials with perhaps one or two witnesses to
give oral explanatory evidence around specific decisions in this case, in the cases identified by
the Respondent in her complaints and/ or relevant BSB policies. That is not beyond the scope

10
 or capacity of the Bar Tribunal. In any event, if it is the Tribunal’s duty to deal with these
matters, then simply being burdensome is not a basis to decline to do so.

47. I am not satisfied that the matters are yet in a proper state upon which reasoned factual findings
can be made. The original notice of application to dismiss was a mere two pages and did not
rehearse to any extent at all the detailed evidence that is set out in the Respondent’s skeleton
argument and associated evidential bundle. There has not been sufficient notice of the
Respondent’s case and evidence given to the BSB to permit the BSB to properly seek to prepare
its case and response. In any event, given that this is a limb 2 abuse of process argument, which
requires a balance of competing interests, I am not satisfied that taking such an exceptional
course as striking out the whole matter is to be properly undertaken by a single Directions Judge
at an interlocutory hearing. The judgements to be made after appropriate findings of facts are
nuanced and best made by a full panel. For these reasons, I decline to strike out these charges
at this stage which must proceed to a full hearing before the three person panel.

48. I ask the parties to agree, if possible, a further set of directions dealing with the service of any
evidence upon the issue of discrimination, whether documentary or statements to get this case
fully trial ready. In the event directions cannot be agreed, each side may submit their schedule
of proposed directions and I shall determine the matter. The draft directions are to be with me
by 27 September 2024

HHJ Jonathan Carroll 11 September 2024

Chair, BTAS.

11