Article26 February 2002

A joke too far
An English Bar Disciplinary Tribunal went over the top when dealing with a racial harassment case.

by Barbara Hewson

The case of The Bar Council v Gordon Pringle has caused something of a stir among barristers in England.

Pringle is a 53-year-old senior criminal barrister and founder of Bridewell Chambers - where one of his colleagues is Baroness Scotland of Asthal QC, parliamentary secretary to the Lord Chancellor's Department, an experienced family law silk, and a role model for black barristers. So it is ironic that Pringle has been officially branded a racist.

Pringle was prosecuted by the Bar Council before a Disciplinary Tribunal on 10 charges of misconduct - five of the charges concerned the use of offensive language constituting discrimination, while the rest alleged conduct liable to bring the Bar into disrepute. The relevant paragraph of the Bar's Code of Conduct says a barrister must not discriminate against anybody on grounds of 'race, colour, ethnic or national origin, nationality, citizenship, sex, sexual orientation, marital status, disability, religion or political persuasion'. ('Age' is to be added to this list.)

The case against Pringle was made by the Bar's Professional Conduct Committee, following complaints by a solicitor's clerk, Eric Adusei, who said he was racially harassed - leading to the first time that a Bar Disciplinary Tribunal had to decide on complaints of racial harassment. On 12 February 2002, Pringle was convicted of two charges, applying the criminal standard of proof (beyond reasonable doubt). His sentence was a fine of £1000, and suspension from practice for a year.

What had Pringle done to merit such a severe penalty? He had said to Adusei during a criminal trial, 'How's the blackamoor?'. The Tribunal found that this was offensive, which clearly it was, and constituted an act of racial discrimination. Pringle had later told a joke in which Adusei featured, so the Tribunal concluded, 'in a demeaning role', which the tribunal said brought the profession of the Bar into disrepute.

Adusei had worked with Pringle on a number of cases since 1998, but relations between them seem to have broken down during a trial involving a timeshare fraud and lots of defendants in early 2000. Adusei was acting as a 'Mackenzie friend' for the lead defendant named Palmer. A 'Mackenzie friend' does not perform the role of a courtroom advocate, instead acting as companion and adviser to somebody who is not formally represented in court.

Palmer was running a 'cut-throat' defence - essentially blaming the other defendants and claiming they were responsible, not him. Pringle was barrister for one of these other defendants. After he made the 'blackamoor' comment, somebody told Pringle that Adusei had taken offence. So while the trial was continuing, Pringle scribbled Adusei a note saying, 'I understand that I have offended you. No offence intended', with a picture of a heart with an arrow through it. He also apologised verbally to Adusei, who felt a bit better.

But Pringle put his foot in it again. On another occasion he said, while everybody was waiting for the judge to come in, 'We are all going on holiday, in Eric's client's private jet, to Eric's client's hotel. Senior counsel will be put up in a suite, junior counsel will get a room, and Eric will serve the drinks on the plane'. He seemed to be suggesting that Palmer was going to get off, and would show his gratitude to the other barristers in the case. Adusei was upset, and later told the Tribunal that he started to dread seeing Pringle.

Pringle's comments on his own behaviour, as reported in the press, rang alarm bells. He said: 'Irony is part of my conversation. I accept there is an age, cultural, colour, and possibly - although it is unfashionable to say it - a class distinction between Mr Adusei and me…. By way of jest, a postmodern, ironic, anti-PC element was introduced into our conversations as ongoing humour...it is possible that nuances might be interpreted differently, and I accept that may have happened in this case.' This is patronising, and probably alienated the Tribunal.

Pringle had not been diplomatic. As the writer John Mortimer QC commented in the UK Guardian: '[A]ny practising barrister would be out of his mind to unnecessarily upset his solicitor's clerk. Solicitor's clerks enter a barrister's chambers bearing briefs…. Barristers depend on their continued favour and good will. Solicitor's clerks should be carefully cultivated…. Any barrister who greets his solicitor's clerk with some phrase like, "Good morning, white trash. Have you remembered to file your affidavit?", is not heading for a successful career at the Bar.' (1)

Of course Adusei was entitled to be treated with respect. He was performing a difficult role in the Palmer trial, and should not have been undermined. He was entitled not to have his colour made an issue, or to be made the butt of jokes, especially by a senior member of the legal profession. Most victims of harassment just want the offending behaviour to stop, with an apology, and an assurance that it will not be repeated. When he complained to the Bar Council, he must have felt that Pringle had not made sufficient amends for his behaviour. Once the Bar Council took the matter over, however, the complainant's role was reduced to that of a witness.

Adusei raised a number of earlier incidents, complaining that on other occasions Pringle had referred to him as a 'coon' and 'blackie', had repeatedly called him 'boy', and had asked him 'how is the black boy?'. The Tribunal rejected these complaints, finding that, in some of them, Adusei could have been mistaken in his recollections.

Curiously, the Tribunal ruled that since on one occasion Pringle had also called a white barrister 'boy', there was nothing discriminatory in the term. This reasoning seems perverse and unfair to Adusei, given that the impact of the word 'boy' on a black man is likely to be different to its impact on a white man. (The history of this word, particularly in the former colonies, means that it is particularly offensive to black people.) The Tribunal also ruled that the joke about Adusei serving drinks was not made on racial grounds.

The Tribunal made a peculiar ruling on the way in which a charge of discrimination had to be proved. It is trite that in civil litigation alleging direct discrimination (for example, 'No women, no blacks, no Irish allowed'), a person has to prove that they have been less favourably treated on racial or other prohibited grounds. Motive is irrelevant. So if you racially abuse somebody, it is no defence to say that you didn't mean it. But the Tribunal said that when a barrister is accused of discrimination as a form of professional misconduct, it has to be shown that he or she intended to discriminate.

At first this sounds sensible. After all, misconduct has to be proved beyond reasonable doubt, and most criminal offences require a mental element (or mens rea). The trouble is, if you are proved to have discriminated against somebody, contrary to the Bar's Code of Conduct, it now means that you actually set out to do somebody down, on racial or other prohibited grounds. In effect, discrimination becomes a hanging offence, like dishonesty.

It seems that this is why Pringle was treated so severely. Having concluded that the use of the word 'blackamoor' was discriminatory, the Tribunal (I suspect) felt obliged to conclude that Pringle must have intended to do Adusei down. It found that he intended Adusei's public humiliation, that his behaviour was 'not friendly', that his note was 'mocking' and that Pringle was intentionally racist. This does not all follow, however.

Pringle's behaviour was unquestionably offensive, but it seems to have been done out of a complete lack of consideration and sensitivity, rather than as a calculated attempt to undermine Palmer's 'Mackenzie friend'. As for the joke, it sounds crass, and it obviously upset Adusei, who did not appreciate being cast in a menial role. But have we really got to the stage where a single joke, however cack-handed, brings a whole profession into disrepute? The sting of the joke was, surely, thought to be that it demeaned Adusei on racial grounds - but once the Tribunal decided that the joke had no racial element, how could it sensibly conclude that this brought the Bar into disrepute?

The Tribunal, having gone over the top, took the opportunity to denounce Pringle as intentionally racist - adopting a quotation from a decision of Lord Justice Rose in a criminal appeal involving racially aggravated violence in 1999: 'Racism must not be allowed to flourish…racism is evil.' Post-11 September, does it make sense to see somebody like Pringle as evil? I cannot accept this. Demonising somebody in this way makes him or her seem beyond hope (which I also cannot accept).

The Tribunal could have adopted a much more proportionate response. It could have expressed dismay at Pringle's obvious lack of race awareness, censured him, and sent him on a training course. But instead, it has stopped him earning his living (and possibly paying his chambers overheads and taxes) for a whole year. That is calculated to cause him real hardship, and is bound to induce resentment.

Reactions within the profession seem polarised by what the Tribunal did. There are those who think that Pringle's behaviour towards Adusei was appallingly racist and insulting, and that he deserved what he got. Others are astonished that he was dealt with so severely. The divergence of views suggests a marked lack of consensus at the Bar on how complaints of this nature should be dealt with. It will be interesting to see whether an appeal by Pringle succeeds to any extent.

Barbara Hewson is a former member of the Bar Council (1992 to 1995) and sat on its Professional Conduct, Sex Discrimination and Disability Committees. She is a member of the Bar Council's Disciplinary Tribunals Panel (but she did not hear Pringle's case). She is now a barrister at Hardwicke Civil. The views expressed here are her own.

Read on:

British racism - a new original sin, by Frank Furedi

The offended university, by Munira Mirza

spiked-issue: Race

spiked-issue: Free speech

spiked-issue: After 11 September

(1) In the name of the law, John Mortimer, Guardian, 14 February 2002

Reprinted from : http://www.spiked-online.com/Articles/00000002D42D.htm


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