Joseph Sykes v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 11 April 2018 |
| Neutral Citation | [2018] EWHC 761 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5202/2017 |
| Date | 11 April 2018 |
[2018] EWHC 761 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/5202/2017
The Appellant appeared in person
Guy Micklewright (instructed by Blake Morgan LLP) for the Respondent
Hearing date: 01 March 2018
Introduction
Mr Sykes appeals against the decision of the Bar Standards Board Authorisations Review Panel (referred to as “the Panel” or “BSB”) by letter dated 18 October 2017 refusing his application for a review of the decision of the Inns' Conduct Committee (“ICC”) dated 25 July 2017 to re-admit him to the Bar by way of membership of the Honourable Society of Gray's Inn (“Gray's Inn”). This is an appeal from the decision of the Panel brought pursuant to s.24 of the Crime and Courts Act 2013.
On 23 May 2003 a disciplinary tribunal of the Council of the Inns of Court found various charges of professional misconduct and inadequate professional service proved as a result of work undertaken by Mr Sykes during the period 2001–2002 and imposed a penalty of disbarment. On 11 January 2005 his appeal to the Visitors to the Inns of Court against this decision (and decisions following further hearings in November 2003 and February 2004) was allowed in respect of three charges, but the appeals against all other findings of professional misconduct and inadequate professional services, and against orders of disbarment, were dismissed. He was disbarred with effect from 23 July 2003 and expelled from Gray's Inn on 16 March 2005.
His application to Gray's Inn for re-admission was made on 21 September 2016.
The Regulatory Framework
The ICC Rules (dated 21 February 2014)
The material parts of the rules provide:
“ Part 1 – Purpose and Objective
3. The function of the Inns' Conduct Committee is:
(a) To determine any question whether an applicant for admission to an Inn is a fit and proper person to become a practising barrister;
4. To be eligible for admission to an Inn or Call to the Bar, a person must be a fit and proper person to become a practising barrister.
Conduct of the Hearing
26. The Panel shall treat:
(b) a finding of misconduct by a regulatory … body exercising a regulatory, disciplinary … jurisdiction as sufficient evidence of the commission of the offence in question
but may give such weight to that conviction or offence as it considers reasonable in all the circumstances.
Review of the decision of the Inns' Conduct Committee
34. If in accordance with r.Q19 and r.Q110 of the Handbook, the Inns' Conduct Committee decides that the applicant… is not a fit and proper person to become a practising barrister…, the applicant… shall when sent the written notice of the Inns' Conduct Committee decision be informed in writing that a review of the decision under B10 of the Bar Training Rules may be requested, provided that a request is made in writing to the Bar Standards Board within one month of the date when notice of the Inns' Conduct Committee decision is given.”
Statement of Principles and Guidelines for the Inns' Conduct Committee
The material parts of this Statement provide as follows:
“ General principles
4. To be a fit and proper person to practise at the Bar, that person must be honest, of integrity and of good reputation and character. Appendix A to the present Statement (‘Fitness to become a practising barrister’) contains a statement of the principles to be applied in determining whether an Applicant to an Inn is a fit and proper person.
Appendix A
Fitness to become a practising barrister
A2. By BTR r.Q9, an Applicant is a fit and proper person to become a practising barrister if:
(1) There is no reason to expect that that person, if admitted to an Inn, will engage in conduct which is dishonest or which otherwise makes that person unfit to become a practising barrister;
General
A4. The ten Core Duties which govern practice at the Bar, and the rules which supplement those duties, are set out in The Code of Conduct (Part 2 of the BSB Handbook).
A5. The proper administration of justice requires that:
(1) Clients must feel and be secure in confiding their most personal affairs to a barrister;
(2) The public must have confidence in barristers because of the central role which they play in the administration of justice;
(3) The judiciary must have confidence in those who appear before them in court.
(4) Fellow lawyers must be able to depend totally on the behaviour of their colleagues.
In considering whether an Applicant is a fit and proper person to become a practising barrister, the Panel must be satisfied that the Applicant will be able to fulfil these requirements.
A6. Without prejudice to Paragraph A5 above, there are three fundamental characteristics that any Applicant must display: that he or she is
(1) Honest;
(2) A person of integrity; and
(3) Currently of good reputation and character.
The Panel must be satisfied that any Applicant has all of these characteristics in order to be satisfied that he or she is a fit and proper person to become a practising barrister.
Reputation and Character
A10. The applicant must be of good reputation and character at the date of the application. In making a determination of reputation and character, however, past actions may be taken into account as indicative of future behaviour, unless that inference is rebutted by any relevant or mitigating circumstances. …
Re-admissions
A11. The BTRs relating to an application for admission apply also where the application is for re-admission. … Where there has been a previous finding that the Applicant was not a fit and proper person, the ICC will treat that finding as sufficient evidence that the Applicant was not a fit and proper person (as at the date of the finding). The ICC will want to be provided with full information as to the full facts and circumstances surrounding that finding. The ICC will attach such weight to any previous findings as appears appropriate in all the circumstances.
A12. The ICC will need to be satisfied in re-admission cases that the Applicant is at the date of the application to join an Inn a fit and proper person. This will generally require the Applicant to provide to the ICC evidence of personal progress and change.
A13. The ICC will always have regard to and proceed in accordance with the Rehabilitation of Offenders Act 1974 and related secondary legislation.”
The “Criteria and Guidelines” (dated 1 August 2017) that apply to the review decision taken by the Panel provide:
“2.4 Review Panels deal with reviews of decisions as if the application was being dealt with afresh. A Review Panel shall be entitled to have such regard to the original decision, and to uphold, vary or take into account such decision, as in its absolute discretion it feels appropriate.”
In Rehman v Bar Standards Board [2016] EWHC 1199 (Admin), an appeal against the decision of a Disciplinary Tribunal panel, Hickinbottom J (as he then was) set out at paragraphs 18–25 the regulatory regime and the approach on appeal to be adopted by the High Court. He said:
“23. CPR Part 52 governs a statutory appeal under section 24 and rule r.E183, CPR rule 52.11(1) restricts an appeal to a ‘review’ of the tribunal decision; but, by rule 52.11(3)(a), the High Court as the appeal court will allow an appeal where the decision of the Disciplinary Tribunal is (a) wrong or (b) unjust because of a serious procedural or other irregularity in the tribunal's proceedings. The role of this court therefore goes beyond a simple review of the decision on public law grounds – it is possible to challenge factual findings as well as the law – but neither is it a full re-hearing. Because of the important public interest in the finality in litigation, the starting point is that the decision below is correct unless and until the contrary is shown. Laws LJ put it thus in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:
‘The burden so assumed [by the appellant] is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. As appellant, if he is to succeed, he must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.’ (emphasis in the original).
24. However, even if to that extent the court has to engage in the merits of the case, the court is required to give due deference to the tribunal below, because (i) with the authority of the elected legislature, the tribunal has been assigned the task of determining the relevant issues; (ii) it is a specialist tribunal, selected for its experience, expertise and training in the task; and (iii) it has the advantage of having heard oral evidence.
25. Of course, the extent of the deference to be given will depend upon the nature of the issue involved, and the circumstances of the case; but the deference is likely to be great where the issue is one of disputed primary fact which is dependent upon the assessment of oral testimony,...
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