Response to the BSB Consultation on the regulation of non professional conduct.

I will give a cash prize of £500 for the first person to tell me which 3 of the 27 tweets below were deemed worthy of professional sanction.

Sarah Phillimore @SVPhillimore

Crikey. Let’s have a look at the three examples of such behaviour shall we! Barristers could be disciplined for 'seriously offensive' tweets

lawgazette.co.ukBarristers could be disciplined for ‘seriously offensive’ tweetsBar Standards Board is consulting on revised social media guidance to clarify when it might intervene.

The BSB published its interim social media guidance today and invited public consultation. I provide my response below. I also publish the 27 tweets which made part of a ‘charge sheet’ sent to me in December 2021. Only 3 eventually made the cut. Can you guess which ones?

To whom it may concern

I wish to respond to only one question of your consultation document so I set out my response in this email. You have asked if your proposed case studies are helpful. I refer to this example and the answer I give is ‘no’.

The BSB receives a report about a barrister who frequently tweets about their gender critical views using their personal Twitter account. A transgender woman (who openly states their transgender status in their Twitter profile) responded to one of the barrister’s tweets, challenging their views. The barrister then sent several tweets directed at the transgender woman, in which the barrister deliberately misgendered and threatened them. In this case, the barrister’s conduct in specifically targeting the transgender woman, threatening, and intentionally misgendering them are likely to be considered seriously offensive and discriminatory. This conduct could diminish public trust and confidence in the barrister and/or the profession (and thus be a breach of CD5) and/or could reasonably be seen by the public to undermine the barrister’s integrity (and thus be a breach of Rule

The content of this case study indicates a profound misunderstanding of the nature of the conduct which it is within your remit to investigate or prohibit and casts doubt upon the reality of the draft Guidance’s efforts to

1. recognise the fundamental importance of Article 10 ECHR and the compelling reasons that are required to fetter it. 

2. recognise protected belief and the requirement not to discriminate against it.

You appear to equate ‘deliberate misgendering’ with ‘threatening’ and both are likely to be considered ‘seriously offensive’.

This makes no sense. A direct threat to an individual is inevitably a regulatory matter. For ‘deliberate misgendering’ to be a regulatory matter there would have to be far more detailed consideration of the context in which this was done, including the direct contact made by the person claiming offence. Absent such consideration, it is not clear how the BSB would then protect itself from accusations of discrimination in proceeding against the barrister who would claim a protected belief.  This ‘case study’ appears to operate in ignorance of, or disdain for the decisions of the Court of Appeal in Miller, the Employment Appeal Tribunal in Forstater and the Bar Tribunal and Adjudication Service decision in Holbrook.

That such a case study would be presented by the BSB as a ‘helpful’ example is perhaps less of a mystery when I look at the questions asked regarding diversity and equality at the end of the consultation response which demonstrate quite clearly where the BSB finds itself in promotion of ‘gender identity’ ideology. I note you ask if my ‘gender identity’ is the same as my ‘sex assigned at birth’ . Despite asking me what my sex is, you then ask me what my ‘gender’ is. Sex is the protected characteristic, not ‘gender identity’. Belief in ‘gender identity’ is akin to a quasi religious belief; it is not a belief I share. I find being asked if my ‘sex’ was ‘assigned’ at birth as offensive as asking if my disability was assigned at birth. Neither were ‘assigned’ – they were observed and recorded.

The stated aims of the BSB to promote a diverse profession to serve a diverse community will ring hollow unless and until you are able to embrace and understand that plurality of views are essential and must be protected. I will vigorously defend any further complaints made about me that I am ‘transphobic’. I am nothing of the sort. But I am becoming increasingly fed up.

£500 in cash to who-ever can answer this question

Which 3 of the 27 tweets below were deemed worthy of sanction by the BSB after an investigation spanning approximately 15 months? You are disqualified from entry if I have already told you! Please email sarahvphillimore@gmail.com. The first correct identification received by 4pm on Sunday July 24th will win £500. Regardless of which tweets you think are ‘particularly abhorrent’ please do let me know in the comments whether you think this exercise was worthwhile in terms of time or money.

APPENDIX 1

Detailed response to the tweets supporting the unparticularised allegations

Response to PC2021/5032

On or around 22 November 2019 Ms Phillimore posted on Twitter:

1. (a)  “Hello all police forces! I am disabled and I FEEL very strongly that this is hatred against my community, suggesting that we are ‘witches’. Please could you record this against Maureen’s name and pay her a visit. Thanks!”, and

2. (b)  “Let’s see if the police snap into action for the disabled as quickly as they do for upset men identifying as women. I suspect I already know the answer to that”.

Ms Phillimore’s tweets were in response to the following tweet:

“Like a witches coven all huddled around the cauldron of hate presided over by chief priest Harry the ex cop”.

MY RESPONSE  This is a jokey and exasperated comment, pointing out what I reasonably perceive to the be failings of the police to abide by their public sector equality duty and to promote good relations between all the protected characteristics. As I disabled person I feel particular sadness that various police forces will routinely fly ‘trans flags’ but I have yet to see any such respect and validation offered to the disabled community, of which I am a member.

This tweet does not tag an individual police force or identify ‘Maureen’. I disagree that this tweet indicates a breach of the Code of Conduct in any way. And without further particularisation I can’t usefully comment further

On 16 May 2020 Ms Phillimore posted on Twitter:

(a) “Transwomen are men. If they wish to access women’s spaces the burden on them is to prove this is a proportionate and legitimate incursion into women’s rights to sex segregated spaces.”

Ms Phillimore’s tweet was in response to the following tweet posted by [@TheMaxGreene] on 16 May 2020:

“And you’re talking about trans people. Not men”.

MY RESPONSE: I make a factual statement which is also an expression of a protected belief pursuant to the Equality Act. I disagree that this tweet indicates a breach of the Code of Conduct in any way and I am concerned at the potential for unlawful discrimination if my protected belief on issues of sex and gender is singled out for regulatory action.  

On 29 June 2020 Ms Phillimore tweeted:

(b) “Yes. I don’t need to read your tweets again. With respect I have access to the ONS. Transwomen are men. I am not sure what you mean by MRI tube. Didn’t think we needed magnetic resonance imaging to observe penis, testicles, and a beard.”

Ms Phillimore’s tweet was in response to the following tweet posted by [@Anna84246988] on 29 June 2020:

“So being a male is the strongest predictor of being an offender? Read my other tweets.
Also, they are not men. This has been demonstrated in the MRI tube again and again.”

MY RESPONSE: I make a factual statement which is also an expression of a protected belief pursuant to the Equality Act. I disagree that this tweet indicates a breach of the Code of Conduct in any way and I am concerned at the potential for unlawful discrimination if my protected belief on issues of sex and gender is singled out for regulatory action. 

On 27 September 2020 Ms Phillimore posted on Twitter:

(c) “No. They are men. I will support their right as transwomen to spaces where there are no men, but I will not support their right to demand automatic access to single sex female spaces.”

Ms Phillimore’s tweet was in response to the following tweet posted by [@Krampfen1] on 27 September 2020:

“But also abusive trans women are women. And women – as a class – pose far less of a risk to other women than men”.

MY RESPONSE: I make a factual statement which is also an expression of a protected belief pursuant to the Equality Act. I disagree that this tweet indicates a breach of the Code of Conduct in any way and I am concerned at the potential for unlawful discrimination if my protected belief on issues of sex and gender is singled out for regulatory action. Single sex spaces for women, for their safety and dignity, are expressly permitted and protected by the Equality Act 2010.  

On 18 June 2020 Ms Phillimore posted on Twitter:

(d) “I am not. I am sure vast majority of transwomen are not paedophiles. Just as I am sure the vast majority of men are not. BUT THE VAST MAJORITY OF PAEDOPHILES ARE MEN.
I don’t understand why this point is so hard to grasp”.

MY RESPONSE: I make a factual statement which is also an expression of a protected belief pursuant to the Equality Act. I disagree that this tweet indicates a breach of the Code of Conduct in any way and I am concerned at the potential for unlawful discrimination if my protected belief on issues of sex and gender is singled out for regulatory action. 

On 9 September 2020 Ms Phillimore posted on Twitter:

(e) “There are many discussions we need to have as a society. Why is the age of criminal responsibility 10 years but the age of consent to sexual activities16?
That makes no sense.

But why do we now see such efforts by many to sexualise 12 year olds?”.

This tweet re-tweeted the following tweet posted by [@MCRobredz] on 8 September 2020:

“Its almost as if Stonewall support the old PIE argument of removing or reducing Age of Consent wasn’t Patricia Hewitt who suggested 13 or 10?”

Ms Phillimore tweeted in response to her own tweet:

1. (f)  “Why are there so many organisations and individuals that seem to think 12 is the age at which a child can be invited into groups with adults in their 20s! Or to contact adults privately to ‘discuss’ matters their wicked parents wouldn’t understand”; and

2. (g)  “The word for this is ‘grooming’. It doesn’t become less dangerous when you slap a rainbow on it. Why are children who may be gay or trans deemed worthy of less protection?”.

My response. I am baffled as to how this exchange in any way is meant to demonstrate a breach of the Code of Conduct. It is a polite exchange about age of consent and concern that some appear to see gay or trans children as less worthy of protection due to their age. These are issues of public interest and importance. I am not rude or abusive, or harassing anyone.   

On 30 May 2020 Ms Phillimore posted on Twitter:

(h) “Yes. As do I. Any proponent of ‘queer theory’ is a ‘groomer’. Grooming others to accept some very warped version of the world causes harm. Please do feel to take legal action against me or report me to the police”

Ms Phillimore’s tweet was sent in response to the following tweet posted by [@tomgabion] on 30 May 2020:

“Doesn’t Graham Linehan accuse people of being “groomers” regularly?”.

My response. Again I am baffled as to how this exchange in any way is meant to demonstrate a breach of the Code of Conduct. ‘Queer Theory’ is a highly contentious ideology with which many disagree and I am one. I am pointing out that ‘grooming’ is not restricted to sexual behaviour but can cover any kind of imposition of views/ideology. I am not rude or abusive or harassing anyone. I fail to see why it is a comment on my honesty or integrity or on the public perception of the Bar if I am advising people to take further action if they think it is warranted. I am simply expressing my exasperation that so many of the abusive responses to me online involve threats to report me to my regulator or the police.

On 18 October 2020 Ms Phillimore posted on Twitter:

1. (i)  “If they lied to their partner who did not therefore consent then yes they are abusers. It is it fair to use other people in this way. It is wrong”.

2. (j)  “Why not? I never ever understood why original film so lauded for ‘braveness’ of protagonists. Two men who engaged women in their charade and blighted their lives – not a thought for them”.

3. (k)  “I can understand it was hard to be honest about your sexuality in those times – but it’s not ‘brave’ to draw two women into a lie”.

(l) “Ofcourse.Weareallflawed.Thatmeansweshowcompassion, not that we encourage bad behaviour or laud it”.

Ms Phillimore’s tweets were sent in response to the following tweet posted by [@JayneEEgerton] on 18 October 2020:

“That’s an appalling take. Are you going to represent all the closeted lesbians & gay men who’ve had heterosexual marriages as ‘abusers’”.

My response. Again I am baffled as to how this exchange in any way is meant to demonstrate a breach of the Code of Conduct. I am discussing my reaction to the film ‘Brokeback Mountain’ which some online were lauding as a film about the bravery of two men engaging in a homosexual relationship. I was pointing out that both characters were married to women and it was not particularly ‘brave’ to have entered into a heterosexual relationship on false pretences, as presumably their female partners were unaware of their true sexuality. The fact that someone else – wholly unreasonably – wishes to accuse me – falsely – of saying that gay people in heterosexual marriages are automatically  ‘abusers’ is a matter for them. My concern was not with the sexuality of the protagonists but the deception carried out on their wives. I think this is an entirely reasonable observation and it is no reflection whatsoever on my integrity and honesty or independence and cannot possibly bring the profession into disrepute.

On 26 September [year unknown] Ms Phillimore posted on Twitter:

a)    “Thanks! Come visit me in prison: the hate incidents are mounting up!”.

MY RESPONSE. This is a jokey comment. What possible relevance does this have to my integrity or honesty etc. Without further particularisation I cannot usefully respond.

On 1 October Ms Phillimore posted on Twitter:

b) “Hitherto unseen footage of my Hate Crimes Specialist Officer on the way to plough through another 300 pages of my tweets.”

Ms Phillimore’s tweet re-tweeted the following tweet posted by [@1Fubar] on 1 October [year unknown]:

“And our police force wonder why so many have lost respect for them...” (Tweet linked to a video clip).

MY RESPONSE A jokey comment. The video clip showed a police man dancing at a Pride March. What possible relevance does it have to my integrity or honesty etc. I note with interest that this tweet and the one above were reported to Wiltshire police as a ‘hate incident non crime’ and recorded. I speculate that the person who reported me to the police is the same person who has made this complaint to the BSB and I am entitled to know their identity, given that I have evidence to support my assertions that these allegations are malicious.

On 2 October 2020 Ms Phillimore posted on Twitter:

(c) “But he conceded there was no evidence that I meant to infer or imply Jewish people were like dogs. It would odd in any event to say that demonstrated ‘hatred’ – I love my dogs far more that most people. They are excellent creatures.”

My response. I am unable to see what is relevant here to the alleged breaches of the Code of Conduct. The allegation is wholly unparticularised and I cannot usefully respond.

If that account IS a child and I was in conversation with the father, then that is a style of parenting I simply don’t understand”.

Ms Phillimore’s tweet re-tweeted the following tweet posted by [@Rotshasa]:

“You encouraged harassment of a child less than an hour ago, you and reality have long parted company.”

Ms Phillimore posted the following on Twitter [date of posting unknown]:

(d) “Please do report me.
I urge you do report me.
It is very necessary and important that you report me. Stop wasting time on social media and do your duty.”

MY RESPONSE This is clearly part of a conversation. I am clearly exasperated as it is common feature for many who disagree with me on line to report me to the police or my regulator. I am urging this person to stop making idle threats and report me. I do not see how urging someone to take advantage of a complaints process is in any way a breach of my Code of Conduct, even if I am exasperated while doing it.  I had initially responded to an insulting tweet from a person named Dylan. I was later told that this person was a 16 year old child. As soon as I was made aware of this, I stopped interacting with this account.

Ms Phillimore’s tweet was in response to the following tweet posted by [@EyeEdinburgh]:

“Sarah Phillimore urges me to report @WeAreFairCop to the police for tweeting #SayYesToHate on #TDoR2020.
RT if you agree with Sarah Phillimore.”

Ms Phillimore responded to her own tweets with a further tweet:

(e) “Because all your ridiculous, malicious, hysterical, timewasting reports will hopefully feature in my statement before the High Court, to underscore the hopeless, corrupted stupidity of our current system.

Please, please report me and help me win.”

MY RESPONSE. I am clearly exasperated by what I perceive to be threats of malicious complaints. My language is exaggerated but it is not abusive or profane. I am pointing out that I have an application in judicial review against the College of Policing and I consider further evidence of malicious complaints will help my case. I do not see what is in any way a breach of the Code of Conduct here

28 November 2020 Ms Phillimore posted on Twitter:

(f) “I do not read people’s profiles. I suggest that the onus is on the person making the threats to check themselves, not on me to carry out investigation of their profile before replying.”

Ms Phillimore’s tweet was in response to the following tweet posted by [@louisehector]:

“Perhaps check people’s profiles first before threatening them with legal action?”

On 28 November 2020 Ms Phillimore posted on Twitter:

(g) “Will never shut up. DM me your address for service.”

Ms Phillimore’s tweet was in response to the following tweet posted by [@_DylanHamilton_]:

“I completely support what’s in this letter. Put your money where your mouth is: sue me, or shut up.”

[@patsyk94851594] responded:
“Dylan is 16. His assets are a computer & bike.” [@gordon_struth] responded:

“I’m Dylan’s dad. I have a degree in Scots Law, as does Dylan’s mum. We’re looking forward to taking Sarah’s money off her, we could do with a nice holiday.”

MY RESPONSE I can recall this exchange quite clearly. I was subject to abusive comments from a poster, alleging I was either an anti Semite or a transphobe, who I assumed to be an adult, but who then was identified as a 16 year old child by another poster. On being informed of this I ceased communication with the account claiming to be a child. Nor did I have any further engagements with the account claiming to be Dylan’s father, other than to point out that if Dylan really was a 16 year old, it was probably unwise to be behaving in this way on social media. I later discovered that Dylan was among a group of people who made false allegations in a petition, allegedly signed by a number of serving Scottish politicians, that Joanna Cherry QC had donated to a ‘hate group’ when she had in fact made a donation to my crowdfunder raising money for my application for judicial review. I contacted the three members of the Scottish Parliament who signed this petition and one replied to say that his name had been added without his knowledge or permission. I think there is clear evidence that a group of people are acting in concert to do me reputational harm and this complaint is further evidence of that.

I don’t understand why asking anyone who is making repeated abusive and defamatory comments in public for an address for service is a breach of the Code of Conduct, but absent any particularisation of this allegation I am afraid I can’t usefully comment further.

On 28 November 2020 Ms Phillimore posted on Twitter:

(h) “I can tweet whatever offensive content I like. It is not a criminal offence to be offensive, so long as I do not target individuals, which I do not.

It is however a potential and serious criminal offence to incite violence against me by way of making defamatory statements.”

Ms Phillimore’s tweet was in response to the following tweet posted by [@frank_words]:

“Well maybe if you didn’t tweet offensive content then you wouldn’t be perceived by some as being hateful and offensive resulting in being reported to the police. As you have previously mentioned online abuse is not just words on a screen”.

MY RESPONSE: I do not understand why this exchange is considered a breach of the Code of Conduct. It is a statement of fact. I am not insulting or abusing anyone. The fact that the account ‘frank words’ considers me to be offensive is not by itself a reason to conclude that I have breached the Code of Conduct. Absent particularisation of this allegation I can’t usefully comment further.    

On 29 November 2020 Ms Phillimore posted on Twitter:

1. (i)  “If I am killed or hurt by an angry person who believes they are justified in striking down a hateful transphobe then I doubt very much the police would be able to provide a direct link to David Paisley.

But he is the water in which these dangerous people swim.”; and

1. (j)  “It is just another part of the insane hypocrisy of this current time – that women such as I are told to shut our mouths, lest out hateful discussion of biology prompts a trans person to self harm.”

MY RESPONSE I do not understand why this exchange is considered a breach of the Code of Conduct. It is a statement of my honest opinion, it does not involve abusive language or targeted harassment etc. I am making comment on the general toxicity of the attempted discussions between those who disagree about the conflation of sex and gender and those who seek to elevate gender identity above sex.

Ms Phillimore posted on Twitter:

1. (a)  “But on the plus side it’s a lovely evening. Although I am worried one of my dogs might be Jewish, should I just leave him behind?”; and

MY RESPONSE There is no date provided for this tweet, but on checking the disclosure from Wiltshire police I note the date is 23rd May 2019. I have already made comment on what I think about the long delay between publication and making complaint to the BSB.

This is a jokey comment which needs to be seen in the context of the conversation that led to it – I was accused of being an American racist and Trump supporter so adopted the persona of that person for about three tweets. I will concede that this was childish behaviour and I have not repeated it since. However, I do not concede that it is a breach of the Code of Conduct. This tweet was also reported to Wiltshire police in December 2019 so I would be interested to know the identity of the complainant, to the BSB, particularly as I have provided evidence above that this report to the police was made maliciously.

1. (b)  “Interesting perspective. Why not shift it a bit? ‘I am not trying to deny any Jew the right to exercise their faith – but if I decide tomorrow on no other basis than my declaration that I am Jewish, they damn well let me in the synagogue or I will burn it down”.

MY RESPONSE I do not understand why this tweet represents a breach of the Code of Conduct. I was responding to someone who said a man had a right to self identify as a woman and enter a single sex female space. I point out that this is similar to someone claiming to be of a particular religious persuasion and demanding entrance to a place of worship by use of threats.  I note with interest that in January 2021 this tweet was used by many – such as David Paisley in interviews with various Scottish newspapers - as an example of my ‘anti Semitism’ and to support a wholly false assertion that I had been suspended from Twitter for Holocaust denial and that I was encouraging others to burn down synagogues.

 I deny that this tweet or any of my tweets exhibit anti Semitism. I consider this complaint to be malicious and the fact that these tweets have been relied upon in other contexts to cause me reputational harm, underscores my concern about the whole basis for this complaint. This tweet was also reported to the Wiltshire police in December 2019 so I would be interested to know the identity of the complainant to the BSB, given that I have asserted that this report to the police was malicious, and provided evidence.