Pas Devant Les Enfants

Yesterday, a Solicitors’ Disciplinary Tribunal (SDT) fined the high-profile media solicitor, Mark Lewis, £2, 500 for certain tweets and Facebook posts, which were held to have shown a lack of integrity and to fail to uphold the confidence which the public places in the profession. He was also ordered to pay £10, 000 costs. 

Lewis is Jewish, and the outcome of his regulatory tribunal has sparked a strong reaction in Britain. It appears that the impugned posts were responses or reactions to vicious attacks on him of an anti-Semitic nature. His supporters are busily crowd-funding to pay his fine, and costs.

A prominent QC, Simon Myerson, voiced his dismay on Twitter:

I don’t post specifically as a Jew very often. But @sra_solicitors is covered in shame tonight. They picked on a Jew subject to racist abuse. They punished him as a solicitor for responding to death threats. Being a Jew first isn’t acceptable, apparently. Truly contemptible.

Lewis rose to fame as a result of the 2011 ’phone-hacking scandal, in which he acted for the Dowler family. His tenacious pursuit of justice on behalf of victims of phone-hacking catapulted him into an élite circle of super-lawyers. Lewis is also disabled (he has multiple sclerosis) and is a wheel-chair user.

As yet, I have not been able to locate a formal ruling, or transcripts of the hearing, so this post is a preliminary commentary. I will aim to do a more in-depth analysis, when more information becomes available.

The charges preferred by the Solicitors Regulatory Authority (SRA) were remarkably unspecific: 

  1. On the 26 May 2017 he used his Facebook account to publicly post offensive and profane communications towards a third party; 
  2. Between the 12 July 2015 and 7 December 2016 and on dates unknown, he used his Twitter account which publicly identified him as a solicitor to publicly post offensive and profane communications.

I nearly fell off my chair when I read this. “Profane communications”? Sheesh. I didn’t know we were living in a theocracy. For those of my readers unacquainted with the concept, to profane is to desecrate. How could any self-respecting regulator in Britain today draft charges in such anachronistic terms? 

As yet, neither the SRA nor the SDT have deigned to tell the public what exactly Lewis said, that landed him in such hot water. So, not exactly transparent. According to a report in the Law Society Gazette on 22 November 2018:

The tribunal heard from an SRA investigator who confirmed she did not have access to the messages that had prompted Lewis’s responses, which had come from accounts which have since been deactivated. No attempt had been made to gain disclosure of these messages from the High Court, and the SRA’s case was presented with no context as to the messages Lewis had received. 

This will not do. Speech – or written conversation via mediums like Facebook or Twitter – does not occur in a vacuum. The European Court of Human Rights has said many, many times that context is critical, when evaluating whether the state may limit the exercise of Article 10.1 rights to free speech under Article 10.2. 

See e.g. a recent decision of the ECtHR in Terentyev v Russia (Application no. 10692/09), 28 August 2018. There, the European Court said at §69:

It is only by a careful examination of the context in which the offending, insulting or aggressive words appear that one can draw a meaningful distinction between shocking and offensive language which is protected by Article 10 of the Convention and that which forfeits its right to tolerance in a democratic society (see, for a similar approach, Vajnai v. Hungary, no. 33629/06, §§ 53 and 57, ECHR 2008). 

It concluded at §82:

Turning to the reasoning of the domestic courts, the Court observes that they focused on the nature of the wording used by the applicant, limiting their findings to the form and tenor of the speech. They did not try to analyse the impugned statements in the context of the relevant discussion and to find out which idea they sought to impart.

Where the other parties’ posts to exchanges with Lewis were identified, Lewis said: “Seeing them in black and white, I can’t believe I am here having to answer this. It is disgraceful.”

The only post which was detailed in press reports was one by Lewis, where he responded to a comment in the following terms: “Happy to celebrate your death too. I have not got time for your hideous evil.”

I am pinching myself to see how any sane reader could treat this as anything other than an acid riposte to a very nasty comment. Obviously, it is not to be taken literally: rather, it is a kind of “same to you” retort. 

I await the SDT’s detailed statement of reasons, before I comment further.

If Lewis is able to appeal to the High Court, and decides to do so, that could be very interesting. All manner of interest groups might then seek to intervene. This story may not be over yet.