Billie Bryan of Caribbean Colour, Dinah Rose KC, and the BSB's apology dolphin.
The Bar Standards Board has apologised to human rights barrister Dinah Rose KC after investigating her and sending its report to a complainant without her knowledge.
The silk came under fire from gay rights group Colours Caribbean after she refused to withdraw from a case in which she successfully represented the Cayman Islands government in its contention that the territory's constitution forbade same sex marriage.
Citing her obligation to act under the cab rank rule - the principle that barristers cannot refuse a case, unless one of a limited number of exceptions applies - she said at the time, "The cab rank rule applies to the Privy Council brief. As an instruction to appear in a court sitting in England in an area in which I was expert, received when I was available to act, I was obliged to accept it".
Rose, who is the President of Magdalen College, Oxford, was forced to fend off criticism from students for her decision, and she described receiving "pressure in the form of abuse and threats".
Tweeting that "I unequivocally support LGBTQ+ rights", she explained at the time that barristers "should not be identified with the views or positions of their clients", as the resulting harassment could deter them from taking on unappealing clients, which "is contrary to the public interest, because a fair hearing requires that both sides of the argument are properly represented".
Colours Caribbean complained to the BSB that Rose should nonetheless have rejected the Cayman instruction using an exception to the cab rank rule which allows barristers to pass on a case if asked to undertake 'foreign work' or act for a 'foreign lawyer'.
The BSB initially dismissed the complaint, but Colours Caribbean appealed the decision, and in a press release last month announced that the BSB had sent it a "damning" five page report which vindicated its position.
Rose told RollOnFriday that the contents of the report, seen by ROF, were defamatory, and tweeted that she has instructed solicitors to bring libel proceedings against The Times over its reporting of the matter.
The barrister said she was "appalled to discover" that her regulator had "entertained a complaint about my conduct without giving me any opportunity to respond to it", and that the BSB's independent reviewer, "whilst rejecting that complaint as unfounded, had made comments that were based on an erroneous and incomplete reading of the Bar Code of Conduct". She said the experience "has profoundly shocked me".
In a public apology, the BSB clarified that it "has taken no regulatory action against Dinah Rose KC, and has made no ruling against her" and that it "did not find Ms Rose to have been 'reckless' or to have acted inappropriately".
It continued that the BSB "accepts that, before reviewing its original decision and in the circumstances of this case, it would have been appropriate to have invited Ms Rose to comment on the review. It apologises to Ms Rose for its failure to do so, and has commenced a review of its processes for the future".
The BSB also confirmed that Rose was correct to work for the Cayman government under another rule, which determines that barristers cannot refuse to act for a client because the case is objectionable or because their beliefs are regarded as unacceptable. "Criticism of Ms Rose for taking on this case is, accordingly, misplaced", it said.
Billie Bryan, the founder and president of Colours Caribbean, was unmoved, and told RollOnFriday, "We recognise that Dinah Rose KC may be unhappy with how the BSB eventually reached its ruling - especially given that she was largely uninvolved in the process - however, the fact remains that she was wrong".
The Bar Council joined Rose in her dismay at the debacle. Mark Fenhalls KC, chair of the bar said, "The BSB’s handling of the complaint against Dinah Rose was unacceptable and inexcusable. It is inconsistent with the fundamental principles of fairness to ever issue a decision document to a complainant which is critical of a barrister without providing the barrister with an opportunity to be heard or to comment".
"Billie Bryan, affectionately known as "Bee," is an eco-conscious graphic designer, web designer, artist, musician, activist and vegan. "
A bit self-indulgent describing yourself as "affectionately known..."
Generally though - how do people still need it explained to them after so many hundreds of years that both sides need to be represented in a dispute? It's such a basic point.
Lol "Billie Bryan" is a graphic designer but believes he understands the Bar Code of Conduct better than Dinah and the BSB. Muppet.
It was a foreign instruction from a foreign lawyer. Wrong to call Billie a muppet.
The BSB is the gold standard of regulators.
If you have been cleared by it, of all wrongdoing, then you're in good company.
Take it from me.
And also accept my views on the quality of BSB regulatory actions as being correct.
"Billie Bryan of Caribbean Colour"
Is RoF allowed to say that these days? I'm not sure it's the acceptable nomenclature in 2022.
The BSB should articulate whether the 21 September 2022 letter is retracted in respect of their finding as regards the can rank rule not applying. The BSB statement did not articulate that and in fact said both the cab rank rule (and the exemption) and C28 were relevant, although no rule had been broken. But the fundamental question is whether C28 (effectively requiring non-discrimination) can be invoked to assist foreign clients to discriminate, segregate and criminalise (e.g Jamaica) minorities, forcing a barrister to take a foreign lawyer instruction on such matters, which instruction would otherwise be exempt from the cab rank rule under rC30.6.
The arrogance of the complainants is astonishing. They think they have the right to decide which litigants may have legal representation. This is basically a fascist position.
No mention of The Times’ slipshod and p*ss-poor reporting on this which has reportedly led to defamation proceedings. Their ‘legal’ reporting has become little better than that of a red-top gossip column.
Is Billie Bryan one of these new fangled Women that people on the main discussion board are constantly arguing about?
I'm told that it's impossible to tell without inspecting their chromosomes. But for whatever reason I just have a nagging feeling that I might have accidentally identified one of them in the wild here.
That they're engaged in aggressive litigation aimed at hounding a biological woman out of skilled employment is just a coincidence. I'm sure.
"They think they have the right to decide which litigants may have legal representation. This is basically a fascist position."
What a coincidence. Just down the road they're vandalising a law firm's offices in an effort to force them to withdraw representation from companies representing oil companies.
If you were of a paranoid bent you might see these as increasingly common signs of a drift towards authoritarianism by a broad spectrum of self-described progressives, who genuinely believe that they have moral authority in imposing their views on everyone else, using force if necessary.
Nothing to worry about I'm sure. They can't be fascists because they're left wing. You know, national socialists, and the like.
To: Anonymous 25 November 22 14:25
Absolutely disgusting comment from you. Colours Caribbean sought to establish whether the cab rank rule applied to the initial instruction from the foreign lawyer. The BSB said it did not and that Ms Rose KC did not need to accept the initial instruction.
Colours Caribbean is a charitable organisation that does immense amounts of excellent work in the Caribbean region and for you to be so disrespectful of a simple question being ask on an important point of interpretation for U.K. barristers, ie. whether a barrister is bound to take a foreign lawyer instruction when the cab rank rule does not apply, speaks exceptionally poorly of you, not of Colours Caribbean. The organisation does not claim rules were breached by Ms Rose KC but that foreign lawyer instructions do not initially need to accepted if exemption from the cab rank rule applies. This is a fundamental and important principle that underpins the exemption to the rule under rC30.6. Try reading:
To: Anonymous 25 November 22 14:25
I should also note that Colours Caribbean followed due process in raising the question with the BSB. It is astonishing that the BSB did not involve Ms Rose KC when issuing its decision, but that process failure by the BSB is not the fault of a charitable organisation simply seeking to represent the LGBT+ community, a disenfranchised and segregated minority in the Cayman Islands and a criminalised minority in other parts of the region where Colours Caribbean works and in which LGBT+ people frequently lose their lives or are simply locked up because of whom they love.
To: Nibble 25 November 22 13:44
So all of the following are wrong and fascists according to you:
Timothy Dutton CBE KC - a silk at Fountain Court, where he was head of chambers from 2008-13. He was 2008 Chair of the Bar of England and Wales.
Baroness Ruth Deech KC (Hon) - a Crossbench Life Peer and was Chair of the Bar Standards Board from 2009-15.
Chantal-Aimée Doerries KC - Head of Atkin Chambers and was 2016 Chair of the Bar of England and Wales.
Roy Amlot KC - practised for 46 years in criminal law, was Treasury Counsel for 14 years, and retired in 2009. He was 2001 Chair of the Bar of England and Wales.
See their Counsel magazine article confirming the importance of the exemption from the cab rank rule and barristers having a choice to take foreign instructions or not:
My understanding is Colour Caribbean doesn't object to her taking the case but questioned whether Ms Rose KC was OBLIGATED to take the initial instruction - Colours Caribbean’s position was that it was entirely her choice to do; the BSB Code of Conduct did not OBLIGATE her.
Professor Sir Jeffrey Jowell KC is one of the UK’s most eminent lawyers. He acted on the first instance case and continued to act on the Court of Appeal case and the JCPC case, alongside Ms Rose KC. To be clear, Ms Rose KC was *added* to an already strong legal team. It is not that the litigants did not have legal representation. They already had impeccable legal representation. Colours Caribbean questioned whether Ms Rose KC was obligated to take the instruction from the foreign litigant or could legitimately have declined because the exception to the cab rank rule applied. That’s it. Quite simple. Ms Rose KC said she was obligated and the cab rank rule applied, the BSB said it did not then confuses matters with their statement regarding C28 this week.
Colours Caribbean is following the Mermaids/Stonewall playbook - ignore established law and the processes for changing it. Demand that a regulator ignore its own, long established procedures and ethics, and smear and facilitate the harassment of a respected, professional woman. Full house! And Dinah don’t bother apologising, once you are on the LGBT+++ naughty list, there you shall stay.
"The organisation does not claim rules were breached by Ms Rose KC but that foreign lawyer instructions do not initially need to accepted if exemption from the cab rank rule applies."
You must have misunderstood Colours Caribbean's stated position. How unfortunate for you.
If you were paying attention (and not trying to reimagine history after losing on your, I mean CC's, initial position) then you would know that Colours Caribbean had said of Ms Rose that "she was wrong" to take the instructions that she did.
You have also failed to understand the BSB's apparent conclusion, which is was that Ms Rose was "correct to work for the Cayman government under another rule, which determines that barristers cannot refuse to act for a client because the case is objectionable or because their beliefs are regarded as unacceptable". Amazing that something so inconvenient passed you by, really.
But you know all that already. And so does everyone else reading this. Because anyone who isn't a moron can plainly see that this isn't a case designed to seek an important point of clarity, but rather one designed to try to find a way to say that Ms Rose wasn't obliged to take the instructions she did, with a view to then subsequently harassing Ms Rose into withdrawing from them by falsely labelling her as a homophobe for continuing to take them (which was partially achieved, note the "abuse and threats" reported above). With the longer term aim of creating a chilling effect that effectively denies legal representation to organisations whose views you, I mean Colours Caribbean, disagree with.
You are a disgusting authoritarian and a would-be fascist. Draping yourself in a rainbow flag doesn't hide it.
To: Anonymous 25 November 22 17:02
It’s not a question about Ms Rose KC it’s about whether stating the cab rank rule applied to the instruction initially was correct.
Established law and the regulator have all suggested previously that in these circumstances it wouldn’t. I quote the BSB when commentating on the cab rank rule previously:
“…the BSB has concluded, that on balance, it would be a step too far to apply the rule to instructions from any foreign lawyer. It will, of course, still be open to a barrister to take on the work if [he/she] so wishes.”
So when those facts apply and a highly experienced barrister states the cab rank rule nonetheless does apply why is it unacceptable to ask the regulator to clarify? The appropriate process was followed by Colours Caribbean and the BSB conclusions were set forth in the 21 September 2022 letter, linked to by Oxford SU here:
The BSB confirmed the cab rank rule didn’t apply, but astonishingly it turned out they didn’t consult on the final outcome with Ms Rose KC. This led to the clarification statement of the BSB this week. As per the 21 Sept letter, the statement likewise confirmed no breach of the rules but omitted to clarify if the BSB’s position regarding the cab rank rule not being applicable still stands. While the regulator failed in its process vis a vis Ms Rose KC, Colours Caribbean followed correct process and receive an answer on this key question, which it appears had been initiated in 2021. So in a couple of days Colours Caribbean has been left confused as to whether the BSB decision it received and the outcome articulated therein still stands in regards to the cab rank rule and whether Ms Rose was obligated to take the initial instruction.
That guy is a dead ringer for Arnold Toht in Raiders of the Lost Ark.
To: Anonymous 25 November 22 14:42
There was nothing left-wing about national socialism. The reference to "socialism" in the Nazis' full name does not mean what you think it does...
To: Anonymous 25 November 22 17:23
“she was wrong” does not equate to a claim “she breached a rule”.
Being wrong to choose to accept is just Colours Caribbean’s opinion - it does not amount to breach of a rule and they have not said it does. Their point - and please try to understand this - is that since a barrister has a choice to take initial instruction when the can rank rule does NOT apply, they can take account of whatever factors they wish when deciding to accept such initial instruction. For instance, being head of an academic institution with statutory obligations. One might suggest that may be relevant but it’s simply a matter of opinion.
The question is whether the barrister was obligated to take the initial instruction. The answer to that is in the 21 Sept 2022 letter. The BSB said the barrister had a choice. It’s not wrong to pass judgment as to whether that choice was a good one, particularly if you are a charity that represents many people that feel harmed one way or another. It’s not fine, however, for the professional regulator to leave the entire legal profession confused as to what rules require a barrister to accept a case or not. It is also not fine for criticism to be directed at a Caribbean based LGBT+ charity simply because they question a U.K. barrister’s interpretation of the cab rank rule.
So that everyone is clear, the original statement in which the cab rank rule was expressed to apply by the barrister and which had been the basis of Colours Caribbean’s query to the BSB is quoted in the link below. It is only the cab rank rule that’s mentioned, as far as I can see, as a reason for taking the initial instruction - and the BSB determined the cab rank rule (which as far as I know is the only rule compelling a barrister to take an initial instruction) did not apply. This doesn’t mean the barrister necessarily broke any rule, as has been determined, it just means she legitimately could have declined for any reason.
BSB: “"correct to work for the Cayman government under another rule, which determines that barristers cannot refuse to act for a client because the case is objectionable or because their beliefs are regarded as unacceptable". Amazing that something so inconvenient passed you by, really.”
”correct to work” and “not refuse to act” does not mean “had to accept instruction”. Naturally Ms Rose KC must be appalled by not having been consulted by the BSB on the 21 Sept letter outcome. Full sympathy from me - it really is astonishing. But the BSB has said she wasn’t bound to accept the instruction because the cab rank rule did not apply. The BSB statement this week does rather confuse matters given the emphasis on C28 but it would be odd to suggest that C28 cuts across the exemption to the cab rank and nonetheless compels the initial instruction to be accepted.
Ms Rose KC is one of the most impeccable and experienced barristers and has been instrumental in many critical human rights cases resulting in great progress. She has also made her support for equality abundantly clear. I have no doubt she is supportive. The point is this though:
If there was a choice when the barrister was head of an academic institution some may feel it questionable to chose to accept the initial initial instruction in those specific circumstances. That doesn’t translate to homophobia or anything else, it’s just a question of whether it was, in hindsight, perhaps the right choice or not. The barrister however had stated to the Oxford community that the cab rank applied to the brief and hence she had to accept, which the BSB (at least in their 21 Sept letter) said was a mistake.
It is all a terrible mess but really would be resolved by:
(1) the BSB clarifying; and
(2) if the barrister wasn’t compelled to take the initial instruction, the barrister just acknowledging on this exceptionally rare occasion, in hindsight, she got it wrong.
To: Indiana Jones 25 November 22 17:55
Try not to be disrespectful and try to read and understand please. Thank you.
To: Anonymous 25 November 22 14:42
“What a coincidence. Just down the road they're vandalising a law firm's offices in an effort to force them to withdraw representation from companies representing oil companies.”
Sorry I don’t see a connection there with organisations such as Colours Caribbean that are peacefully representing minorities of the British Overseas Territories and other countries of the Caribbean, some of the key objectives of which are to foster safe environments, secure equality, irradiate discrimination and segregation and ensure human dignity prevails. This done by them engaging with MPs and seeking solutions where necessary and appropriate through judicial action. Hence they are not vandalising but instructing lawyers, KCs and top tier law firms in London to represent them. Their ultimate goal seems to be to achieve the same rights that citizens of the U.K. enjoy.
No, @someonethatcares [redacted] - the fact that escapes your notice is that it doesn’t matter if the cab rank rule applies or not. Dinah thought it did, understandably. But clearly your aim here was to determine whether or not she voluntarily took on this instruction (and was therefore fair game for the usual TRA harassment, bullying, and smears) or not (in which case, only lesser TRA harassment, bullying and smears because she is still a woman [redacted]). What you fail to understand is that even if the can rank rule doesn’t apply, people that you don’t like and don’t agree with still deserve legal representation. That’s called living in a just and fair society.
The right to be heard, is a principle that is at least 2500 years old, a pillar of our civilisation. Did BSB give itself an exception.
"Rose, who is the President of Magdalen College, Oxford, was forced to fend off criticism from students for her decision, and she described receiving "pressure in the form of abuse and threats". Classic behaviour from left-whinging students who love freedom of speech and equality only on their terms.
“So when those facts apply and a highly experienced barrister states the cab rank rule nonetheless does apply why is it unacceptable to ask the regulator to clarify?”
Forgive me for being obtuse, but if you’re not trying to make this KC withdraw or encourage harassment towards her, what does it matter to you, sorry, CC, if she accepted instructions on the basis of the cab rank rule or because she felt it was appropriate to accept instructions because it fell within her specialism and she wanted to do her job, and just as a reminder, that is to put forward arguments based on legal principles as opposed to promoting her own personal political agenda???
What do you care about this narrow point unless it’s to cause mischief? It’s literally none of your business. Sorry, CC’s business. And continually bleating on in the comments about it isn’t going to persuade anyone.
Didn’t the BSB get involved in a Harneys matter?
Isn't it odd that barristers allowed such an important point to be so unclear for so long?
That professional litigators didn't use their expertise at litigating to oblige the regulator to give a clear view on the matter?
That they had to wait until a, checks notes, Carribbean NGO with no apparent interest or expertise in the British justice system and which focuses solely on LGBTQ stuff in a foreign jurisdiction took it upon itself to step in to obtain that 'clarity' on the technical workings of the system on their behalf.
Why, it's almost as if none of the relevant parties were ever unclear at all.
Indeed, it's almost as if, and this seems wild, that this (and all the flim-flam trying to sell it as a noble effort to demystify things for perplexed barristers across the land) was all just a transparent exercise in vexatious litigation aimed at facilitating harassment of a legal practitioner for representing a client.
“Generally though - how do people still need it explained to them after so many hundreds of years that both sides need to be represented in a dispute? It's such a basic point.”
The fact that the above comment has been made and it has about 52 thumbs up shows how you are all reading with your eyes closed.
When Dinah Rose KC decided to take the instruction even though the cab rank rule did not bind her to do so:
(1) The Cayman Islands government, with Dinah Rose KC’s representation, along with Sir Jeffrey Jowell KC and another member of Blackstone Chambers, had already successfully overturned the Chief Justice decision in the same-sex couple’s favour that had introduced same-sex marriage in the Cayman Islands. Yes, it was law there, albeit for a very short period of time.
(2) Dinah Rose KC has been elected already as the next President of Magdalen College, Oxford.
Dinah Rose KC explained at great length in her public statement to which Colours Caribbean’s complaint relates, that she had no choice but to accept the instruction because the cab rank rule applied. According to the BSB’s report dated 21 September 2022 the cab rank rule, however, did not apply and the BSB’s Independent Reviewer said a senior barrister “could be expected to be aware of the cab rank rule and its operation in practice” and “Taking this at its highest, this might possibly amount to evidence of recklessness.” See:
COLOURS CARIBBEAN WAS NOT SEEKING TO DENY LEGAL REPRESENTATION TO ANYONE. THE CAYMAN ISLANDS GOVERNMENT ALREADY HAD LEGAL REPRESENTATION:
A SENIOR KC WITH EXPERTISE IN HUMAN RIGHTS AND CONSTITUTIONS OF OVERSEAS TERRITORIES, TOGETHER WITH A JUNIOR, EACH FROM BLACKSTONE CHAMBERS.
THE POINT IS, THAT CLAIMING THE CAB RANK RULE APPLIED, AS SHE DID IN HER PUBLIC STATEMENT, WAS A MISTAKE. THE BSB STATEMENT LAST WEEK AND COVERAGE IN THE PRESS HAS SERVED TO ENTRENCH THAT MISTAKE FURTHER AND RISKS CONFUSING EVERYONE REGARDING CORRECT INTERPRETATION OF THE CODE OF CONDUCT, WHICH IS EVIDENCED BY THESE PUBLIC COMMENTS, MANY PRESUMABLY FROM LAWYERS!!!!
My response to the quoted comment at the end.
I am not Colours Caribbean, though I see why you may think that. I am someone that cares, unlike some of the rest of you. I also happen to be a lawyer with over 15 years of experience. A lawyer that does not jump to conclusions, but looks at the full set of facts, circumstances and evidence and makes a sensible interpretation based on the law.
Choices are choices and I’ve perhaps said too much about that already. The key issue here is the potential ramifications of asserting a wrong interpretation of a rule that regulates the profession. You all now believe that C28 can force an instruction from a foreign lawyer to be taken by a U.K. barrister notwithstanding that the instruction is exempt from the cab rank rule under rC30.6.
Many of you are frankly barking up the wrong tree and showing nothing but prejudice against a trans person of colour and an LGBT+ charity from the Caribbean simply because you think they are unable to understand when in fact it is you that fails to understand or is reluctant to understand.
“Forgive me for being obtuse, but if you’re not trying to make this KC withdraw or encourage harassment towards her, what does it matter to you, sorry, CC, if she accepted instructions on the basis of the cab rank rule or because she felt it was appropriate to accept instructions because it fell within her specialism and she wanted to do her job, and just as a reminder, that is to put forward arguments based on legal principles as opposed to promoting her own personal political agenda???
What do you care about this narrow point unless it’s to cause mischief? It’s literally none of your business. Sorry, CC’s business. And continually bleating on in the comments about it isn’t going to persuade anyone.
Response to: “No, @someonethatcares [redacted] - the fact that escapes your notice is that it doesn’t matter if the cab rank rule applies or not.”
It does matter. It matters because the rule’s application was invoked as part of the public defence to taking the instruction and not stepping away when also elected as President of Magdalen, ie. Dinah Rose KC asserted she had no choice when in fact, according to the BSB (see The Times link below, the KC did have a choice). It’s also not an attempt to deny legal representation because the Cayman government had another KC and junior representing them, both from Blackstone Chambers. Dinah Rose KC was *added* to the team when the government *lost* its case and same-sex marriage was introduced in the Cayman Islands. The government managed to successfully overturn that decision and take away same-sex marriage with the assistance and representation by the expanded legal team, to include Dinah Rose KC.
So, Dinah Rose KC played a legal role, by successfully representing the government in a case whereby same-sex marriage was taken away from a British Overseas Territory. A British Overseas Territory where the local Chief Justice had determined the country’s constitution commanded that human dignity and equality were critical to the rule of law. The submissions made for the government sought to override that and thereby elevated views of the Christian majority, the views of which were supposedly reflected in s.14 of the constitution thereby blocking equality forever from being achieved under the constitution itself.
So the aim of Dinah Rose KC’s client was to prevent same-sex couples from ever having a *right* to same-sex marriage. Dinah Rose KC chose to continue to represent them in that aim while elected as head of Magdalen, with statutory obligations under the Equalities Act that are counter to such an aim and where LGBT+ students may well have included students from the Cayman Islands and other countries where their citizens are denied equality. It is not good for the head of any academic institution in the U.K., let alone at Oxford, to have a lucrative secondary job (in addition to their senior academic position) that requires them to act in the best interests of a client seeking to deny a right to equality and to enshrine segregation into a constitution.
These people can sod off. They chose to make a complaint - they could have written to the BSB on a no names basis. The clear aim was to smear a barrister entitled to take the instruction, cab rank rule or not, in upholding a country's law, looking for a decision that would allow them to attack her. She wasn't "wrong". No doubt the organisation has learned from the trans ultra wing - emphatically assert whatever you believe as a "right" in the hope you bully enough people with a valid opinion into being quiet in order to create your own truth.
I disagree with the law, but if they are that bothered about it they should write to MPs, pay for better counsel on the other side etc.