Barrister awarded costs, but loses case alleging malice

by
17 April 2007

by Shiranikha Herbert Legal Correspondent

PAUL DIAMOND, a human-rights lawyer specialising in religious rights, has been awarded costs of £25,000 against the Bar Council in respect of disciplinary proceedings instituted against him by the Bar Council and subsequently withdrawn.

In 2003, Mr Diamond was the junior barrister defending Harry Hammond, an Evangelical Christian. Mr Hammond was charged with a public-order offence when he preached in a public place holding up a double-sided sign bearing the words “Stop immorality”, “Stop homosexuality”, and “Stop lesbianism”. He was convicted by the magistrates, and the High Court upheld that conviction. He then instructed Mr Diamond to take his case to the European Court of Human Rights, on the ground that the conviction amounted to a violation of his right to freedom of expression.

While Mr Diamond was still instructed in the matter, he wrote an article for the Evangelical Alliance (EA) about the issues in the case. The article was published in the February 2004 issue of PQ, a Christian magazine run by, or associated with, the EA. The article was also published on the EA’s website.

Mr Diamond thought that the article was a private circular for the EA, which would be distributed to selected supporters. He therefore did not think he needed an exemption from paragraph 709 of the Code of Conduct of the Bar of England and Wales, which provides that a barrister may not express a personal opinion to the press or other media, or in any other public statement, upon the facts or issues arising in proceedings, anticipated or current, in which he is briefed or expects to appear or has appeared as a barrister.

When the Professional Conduct and Complaints Committee (PCCC) of the Bar Council raised the matter with Mr Diamond, he gave “a fulsome and unreserved apology”, stating that when the EA first mentioned the name PQ in 2004, he had never heard of it.

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He had assumed that it was a private document for distribution to select supporters of the EA, and had not thought that it was a substantial publication. He accepted that this might have been a misjudgement on his part. He also stated that parts of the article had been changed without his consent. He apologised, and confirmed that he would always attempt to comply with the code.

The PCCC took the view that Mr Diamond had violated the Bar’s code of conduct, even if he had not intended to do so, and that mens rea (intention to do the wrongful act) was not a necessary ingredient of the offence. In October 2004, Mr Diamond was informed of the Bar Council’s decision to prosecute him. The prosecution was withdrawn in July 2005, after it became apparent at a preliminary hearing in the High Court in May 2005 that mens rea was, in fact, an ingredient of the offence.

Mr Diamond then began a High Court action against the Bar Council, alleging that the prosecution had been brought with bad faith and malice, and was an attack on members of the Bar who represented unpopular causes and Judaeo-Christian values.

He said that he had been harassed by the unjustified commencement and then the dropping of proceedings against him. He claimed that the Bar Council was therefore in breach of its duty to act fairly, and was negligent in not exercising the necessary reasonable professional skill and care in commencing a prosecution.

Mr Diamond’s action against the Bar Council failed, but he was awarded the costs of defending the withdrawn prosecution. He was, however, ordered to pay the costs of his own action against the Bar Council.

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