Layne v Attorney General of Grenada
|Lady Arden,Lord Wilson,Lord Sumption,Lady Black,Lord Kerr
|18 March 2019
| UKPC 11
|Privy Council Appeal No 2017 of 0017
|18 March 2019
Privy Council Appeal No 2017 of 0017
From the Court of Appeal of the Eastern Caribbean Supreme Court
Edward Fitzgerald QC Tim Nesbitt QC Amanda Clift-Matthews Ruggles Ferguson Cajeton Hood (Instructed by Simons Muirhead & Burton LLP)
Respondent (not participating)
( with whom Lord Wilson agrees)
The appellant, Mr Joseph Ewart Layne, appeals from the refusal of the Supreme Court of Grenada and the West Indies Associated States High Court of Justice, upheld by the Court of Appeal of the Eastern Caribbean Supreme Court, to admit him to the Bar of Grenada under section 17(1)(a) of the Legal Profession Act 2011 (“the 2011 Act”). The respondent is the Attorney General of Grenada, who appeared below, but he has informed the Board that he does not intend to defend the matter before the Board. The Board is grateful for his courtesy. At the hearing of this appeal, Mr Layne was represented by Mr Edward Fitzgerald QC, together with Mr Tim Nesbitt QC, Ms Amanda Clift-Matthews, Mr Ruggles Ferguson and Mr Cajeton Hood. Mr Layne's representatives appeared pro bono, and the Board expresses its appreciation to them for their valuable submissions.
Section 17(1) of the 2011 Act provides that any person who wishes to practise at the Bar of Grenada may apply to the Supreme Court for admission. Section 17(1) provides:
“17(1) Subject to the provisions of this Act, a person who makes an application to the Supreme Court, and satisfies the Supreme Court that he-
(a) is of good character; and either
(i) holds the qualifications prescribed by law; or
(ii) is a person in respect of [whom] an Order has been made under section 18;
(b) has paid the prescribed fees under the provisions of the Stamp Act in respect of such admission;
(c) has filed in the office of the Registrar an affidavit of his identity, and stating that he has paid the prescribed fee; and
(d) has deposited with the Registrar, for inspection by the Court, his certificate with respect to his qualifications prescribed by law;
shall be eligible to be admitted by the Court to practise as an attorney-at-law in Grenada.”
The principal ground for the orders below was that Mr Layne was not eligible for admission as an attorney-at-law because of his convictions for murder many years earlier.
Since he had fulfilled the educational requirements for call to the Bar, Mr Layne, on 7 October 2013, applied to the Supreme Court for admission to practise as an attorney-at-law.
Mr Layne has serious previous convictions. The offences on which his convictions are based occurred nearly 40 years ago in the following circumstances. Mr Layne was one of several persons, sometimes collectively called the Grenada 17. In 1979 there was a coup in Grenada, in which the Grenada 17 were involved. Subsequently, there was a falling out of two factions. Mr Layne was the deputy defence minister and also the operational commander of the People's Revolutionary Army (“PRA”). Matters ended in violence on 19 October 1983. During the violence, ten persons, including the Prime Minister, Maurice Bishop, and other members of his cabinet were summarily executed by the PRA. Mr Layne, with 12 other persons, was convicted in 1986 of their murders. He was sentenced to death, but his sentence was declared unconstitutional. He was resentenced by Belle J, who, having considered the evidence, sentenced him to 40 years' imprisonment.
It has been said, not just by Mr Layne but also by independent observers, that there were serious irregularities in his original trial. Mr Layne realistically accepts that he cannot complain of those matters in these proceedings in the light of the order of Belle J. Counsel have not troubled the Board with any submissions on that aspect of the matter.
Mr Layne served 26 years of his sentence before he was released in 2009. While in prison, he obtained an LLB (Honours) and LLM from London University, and a Bachelor of Science degree in Applied Accounting from Oxford Brookes University in the UK with first class honours. On 6 September 2013, Mr Layne was awarded the Legal Education Certificate of Merit from the Hugh Wooding Law School. While he was in prison, he used his leadership skills in organising sport and literacy events for prisoners, and on his release, he continued to do good works within the community.
Mr Layne's application for admission as an attorney came before Price Findlay J. There was no issue as to Mr Layne's educational qualifications. There was no opposition to the application by the Attorney General of Grenada or the Bar Association of Grenada. The argument focused on “good character” for the purposes of section 17(1) of the 2011 Act.
The judge set out the following definition of good character:
“The aggregate of moral qualities which belong to and distinguish an individual person, the general result of one's distinguishing attributes. That moral pre-disposition or habit, or aggregate of ethical qualities which is believed to attach to a person on the strength of common opinion and report concerning him.” (para 12)
The judge recognised that “ultimately lawyers are the guardians of our fundamental freedoms” (para 14). Advocates had to “command the personal confidence of not only lay and professional clients but other members of the Bar and of judges” (per Benjamin J, ) (para 16).
The judge made it clear that there was no rule automatically barring someone who had been convicted of an offence from practising the law. However, in the assessment of the judge, an applicant with the background of the appellant had to “make an extraordinary showing of rehabilitation and present good moral character” (para 17). There was no question of punishing the appellant. The test was whether there was “a potential risk to the public, or, more importantly, whether there will be damage to the reputation of the profession” (para 18). The court was “concerned with the maintenance of public confidence in the members of the profession” (para 19).
Mr John Carrington QC made submissions to the judge as amicus curiae. She set out a lengthy passage from his submissions in which he analysed the meaning of good character. He submitted that “good character” had both a subjective and an objective element. The former covered the applicant's honesty, past convictions and so on. The latter covered reputation and public confidence in the profession if the applicant was admitted to practise. Mr Carrington submitted that:
“The fortunes of an applicant must always give way to the need to maintain the collective reputation of the profession.”
The judge held that, while rehabilitation was important, it may not be possible to make a “show of rehabilitation in the face of past serious misconduct” (para 27). The judge had regard to Mr Layne's youth at the time of the murders (he was only 25 years of age) but held that his leadership responsibilities demonstrated his maturity at that age (para 30). The crimes were particularly serious as he was one of those who (while away from the scene) was found to have given the orders to “liquidate” the Prime Minster and others. The judge referred to , , where the Supreme Court of Washington declined to admit a person convicted of second degree murder to the Bar some 30 years previously, despite his successful efforts at rehabilitation. The judge cited other US cases going the other way, for example, , . She cited the dictum of Simons, Acting Chief Judge of the Court of Appeals of New York, in and 730 that:
“Lawyers play a critical role in sustaining the rule of law and thus it is necessary that the legal profession maintain its unique ability to do so by earning the respect and confidence of society.”
The judge commended Mr Layne for his academic achievements and rehabilitation since the commission of his offences (para 26).
The judge's application of the law to the facts was set out in the final nine paragraphs of her judgment:
“38. The point of admission is to select the persons who will handle the law with honesty and with competence, but also not to diminish the role and reputation of the legal profession.
39. The test which the court has to apply is whether there is a potential risk to the public or, more importantly, whether there will be damage to the profession's reputation.
40. The public must have confidence in the Bar, as admitting an applicant to practice sends the message that the applicant is worthy of public trust.
41. ‘Lawyers play a critical role in sustaining the rule of law and thus it is necessary that the legal professions maintain its unique ability to do so by earning the respect and confidence of society.’ , at 730.
42. In the Hamm case, like here, some 30 years had elapsed between the offence in 1974 and the application for admission to the Arizona Bar in 2004, and that application was refused even though he had tried to lead an exemplary life since the time of the offence.
43. Had this applicant committed these acts while a practicing attorney, this court has no doubt that he would have been disbarred. Disbarment has occurred for less egregious conduct.
44. To allow this applicant to be admitted would send an inconsistent message to members of the public and to the profession as a whole.
45. ‘The reputation of this profession is more important than the fortunes of any individual member.’ Bingham MR .
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