England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HHJ Beddoe
2007 0676
INTERLOCUTORY APPLICATION
UNDER S.9(11) CRIMINAL JUSTICE ACT 1987

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/08/2008

Lord Justice Toulson:

Introduction

1. The issue in this case is whether a person who falls within and has complied with the conditions set out in paragraph 206.1 of the Code of Conduct of the Bar of England and Wales (8^th edition) ("the Code") is qualified to provide immigration advice or immigration services for the purposes of section 84 of the Immigration and Asylum Act 1999 ("the Act").
2. K has been charged with 2 offences of providing immigration services, or immigration advice and services, when not qualified to do so, contrary to section 91 of the Act. He is due to be tried at Southwark Crown Court. K's case is that he falls within the provisions of paragraph 206.1 of the Code and was therefore qualified to act and advise as he did.
3. The point is not altogether straightforward. At a directions hearing before Judge Beddoe both parties asked him to rule on the matter as a preliminary issue. The judge agreed to conduct a preparatory hearing under section 31 of the Criminal Procedure and Investigations Act 1996. On 29 February 2008 he ruled against K, who now seeks leave to appeal.
4. At the hearing before us, the prosecution through Mr Ratliff made it clear that they accepted as a fact that K fell within and had complied with the requirements of paragraph 206.1 of the Code, and that they would therefore offer no evidence against K if he succeeded in the appeal against Judge Beddoe's ruling for which he was seeking leave. Conversely, Mr Gottlieb stated on K's behalf that it was the only point which he sought to advance by way of defence. In short, if the matter had proceeded to trial in the ordinary way, the issue would have been the sole live issue. The point being arguable, we grant leave to appeal.

The Act

5. Section 84 provides:

"(1) No person may provide immigration advice or immigration services unless he is a qualified person.

(2) A person is a qualified person if he is –

….

(b) authorised by a designated professional body to practise as a member of the profession whose members the body regulates

…"

6. The terms "immigration advice" and "immigration services" are defined in section 82(1), but it is unnecessary to set out the statutory definitions because it is accepted that K provided immigration advice and services on the occasions in question.
7. Section 86 sets out a list of "designated professional bodies" for the purposes of section 84. The list includes the Bar Council.
8. Section 91 makes it an offence for a person to provide immigration advice or immigration services in contravention of section 84.
9. So the issue is whether K was at the relevant time authorised by the Bar Council "to practise as a member of the profession whose members [it] regulates".
10. The background to the provisions of the relevant part of the Act was that the government had become concerned that a market had developed in the provision of immigration advice and services by people who were not only unqualified but also sometimes unscrupulous. (The mischief was explained more fully in the government's White Paper "Fairer, Faster And Firmer – A Modern Approach To Immigration And Asylum", published on 27 July 1998). The Act created a new post of Immigration Services Commissioner. Broadly speaking, the purpose of the relevant part of the Act was to ensure that any person wishing to provide immigration advice or services must either be registered with the Immigration Services Commissioner (who has statutory power under Part I of Schedule 5 to regulate the activities of persons so registered) or be a person subject to the regulatory control of one of the designated professional bodies. The importance attached to the effective regulation by such bodies of their members is illustrated by section 86(2), which provides that the Secretary of State may remove a body from the list of designated professional bodies if he considers that the body "has failed to provide effective regulation of its members in their provision of immigration advice or immigration services".

The Code

11. The 8^th edition of the Code came into force on 31 October 2004. Part II is headed "Practising Requirements".
12. Paragraph 201 provides:

"For the purposes of this Code:

(a) A barrister practises as a barrister if he supplies legal services and connection with the supply of such services:

(i) he holds himself out or allows himself to be held out as a barrister; or

(ii) he exercises a right which he has by reason of being a barrister…"

13. So there are two ways in which a barrister can "practise", by doing so de facto and by doing so de jure. In order to practice de jure a barrister must fall within paragraph 202. This provides:

"Subject to the provisions of this Code a barrister may practise as a barrister provided that:

(a) he has complied with any applicable training requirements imposed by the Consolidated Regulations which were in force at the date of his Call to the Bar;

(b) he has complied with any applicable requirements of the Continuing Professional Development Regulations;

(c) he has a current practising certificate issued by the Bar Council in accordance with the Practising Certificate Regulations…;

(d) he has provided in writing to the Bar Council details of the current address(es) with telephone number(s) of the chambers or office from which he supplies legal services and (if he is an employed barrister) the name address telephone number and nature of the business of his employer,"

14. Paragraph 203 lays down additional rules regarding the exercise by a barrister of "any right of audience which he has by reason of being a barrister". In order to exercise any such right of audience a barrister must not only be entitled to practise in accordance with paragraph 202 but also fulfil certain other criteria.
15. Paragraph 206.1 is the critical paragraph for present purposes. It provides:

"A barrister called before 31 July 2000 who is deemed to be practising by virtue of paragraph 201(a)(i) in England and Wales shall not be subject to the rules in this Code applying only to practising barrister provided that:

(a) if he supplies any legal services to any person: -

(i) He provides in writing to the Bar Council details of the current address(es) with telephone number(s) of the office or premises from which he does so, and (if he is employed) the name address telephone number and nature of the business of his employer.

(ii) Unless he is employed only to offer services to his employer, he (or, if he is supplying legal services to clients of his employer, that employer) is currently insured by insurers authorised to conduct such business against any and all claims in respect civil liability for professional negligence arising out of or in connection with the supply of legal services for at least the first £250,000 of each and every claim, with an excess not exceeding £500.

(b) Before supplying legal services to any person or employer, and when first dealing with any third party in the course of supplying legal services, he informs them fully and comprehensively in writing (a) of his status and the fact that he does not hold a practising certificate under this Code, (b) of the relevant limitations under this Code on the legal services he may undertake, (c) that he is not fully regulated by the Bar Council, and (d) of the absence of available compensatory powers for any inadequate professional service he may render."

K's background

16. K's background illustrates the position of those whom paragraph 206.1 is intended to assist.
17. K is one of many people who were called to the Bar but was unfortunately not able to obtain a place in chambers because of the well-known bottleneck in recent years. He has provided legal services for clients in the areas of immigration, crime, family law, conveyancimg, landlord and tenant, housing and welfare benefits laws. He has always been scrupulous to keep within the law. He has carried appropriate professional indemnity insurance; he has provided the requisite details of his activities to the Bar Council; he has made his status clear to those with whom he deals.

Discussion and conclusion

18. The opening words of paragraph 206.1 of the Code are not happily drafted. The phrase "the rules in this Code applying only to practising barristers" is puzzling when the term "practising barristers" is defined to include all those practising as a barrister either de facto or de jure or both. But it is clear that the rules which are dis-applied in relation to barristers falling within paragraph 206.1 are important rules governing the behaviour of practising barristers, for example, the fundamental principles set out in Part III (concerning a barrister's integrity, independence and duties to the court and his client) and the further rules about the conduct of work by practising solicitors set out in Part VII (including a barrister's duty to have regard to any relevant written standards for the conduct of professional work issued by the Bar Council).
19. K and the prosecution present two different approaches to the effect of paragraph 206.1. The argument advanced on behalf of K is that the effect of the paragraph is to permit a barrister in his position to supply legal services to clients using the description of himself as a barrister (albeit a barrister without a practising certificate and not fully regulated by the Bar Council) and he was therefore "authorised" to act as he did for the purposes of section 84.
20. The prosecution's argument is that a person falling within paragraph 206.1 is not thereby "authorised" by the Bar Council to practise as a member of the profession whose members the Bar Council regulates. All that the paragraph does is to dis-apply the regulatory provisions of the Code in relation to such a person and so exempt him from potential disciplinary action under the Code for providing legal advice without a practising certificate. There are many forms of legal advice which any person may give to others without breaking the law. (For example, insurance brokers, independent financial advisors or estate agents may routinely give advice to clients on legal matters relating to the subject matter of their instructions.) If, in providing legal services of a kind which anyone may lawfully provide to others, a person holds himself out as a barrister, he does not breach the Code provided that he complies with paragraph 206.1, but that does not put him in the category of a person who is authorised by the Code to practise as a member of the Bar and therefore qualified for the purposes of section 84. That would be to put him in the category of those within paragraph 202.
21. In our judgment the prosecution's argument is to be preferred and Judge Beddoe's decision was right. We reach this conclusion for two main reasons. One relates to the wording and object of the provisions of the Act and the other relates to the wording and object of the provisions of the Code.
22. As already summarised, it is plain that the relevant provisions of the Act are intended to ensure that those who provide immigration advice or services are subject to proper regulatory control. K is not subject to the regulatory control of the Bar Council. Important provisions of the Code, such as those contained in Parts III and VII, do not apply to him. It is noteworthy that section 84(2)(b) does not stop with the words "authorised by a designated professional body to practise as a members of the profession" but adds the words "whose members the body regulates". It is the amenability to regulation which is important. A person in K's position is not regulated by the Bar Council. It would therefore not achieve the purpose of the Act if section 84( 2)(b) were interpreted so as to include K.
23. As to the Code, we consider that there is force in the prosecution's argument that K's construction would effectively assimilate him with those falling within paragraph 202 in treating both categories of person as "authorised" to practise as members of the profession, and that this is not the purpose of paragraph 206.1. The purpose of that paragraph is the more limited purpose of taking such a person outside the provisions of the Code. It is difficult to see how a responsible professional body would wish to authorise a person to perform services for which being a practising barrister provides legal eligibility while at the same time abdicating any regulatory control over the performance of such services.
24. In the course of the argument the question was debated whether K's approach would have the logical consequence of entitling him to full rights of audience. It was common ground that the Bar Council cannot have intended this. Rights of audience are governed by section 27 of the Courts and Legal Services Act 1990. A right of audience may be granted by an authorised body, which includes the Bar Council. Section 31(1) provides:

"Every barrister shall be deemed to have been granted by the General Council of the Bar a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the General Council of the Bar approved for the purposes of section 27 in relation to the right)."

At paragraph 1001, the Code defines "right of audience" as having the same meaning as in the 1990 Act.

25. It was submitted by Mr Ratliff that if the argument advanced on behalf of K is correct, it follows that he would be entitled to appear as a barrister in any court. The paragraph of the Code which deals specifically with rights of audience, paragraph 203, begins with the words:

"A barrister may exercise any right of audience which he has by reason of being a barrister provided that …"

Then come provisions which it is common ground that K does not meet. But if the effect of paragraph 206.1 of the Code is to authorise K to practice as a barrister, it must follow (or so Mr Ratliff submits) that he has a right of audience under section 31 of the 1990 Act, because the limitation on the rights of audience contained in paragraph 203 of the Code would not apply to him (by virtue of paragraph 206.1).

26. Mr Gottlieb turned the argument the other way. He submitted that because paragraph 203 does not apply to K, it follows that he would not have a right of audience under section 31 of the 1990 Act, for the deemed grant of right of audience provided by that section is qualified by the words "exercisable in accordance with the qualification regulations and rules of conduct of the General Council of the Bar". The right is therefore dependant on a barrister falling within paragraph 203 of the Code.
27. We see the force of Mr Ratliff's argument that the paragraph does not grant a right of audience but restricts the exercise of any right of audience which a barrister has by reason of being a barrister. If, therefore, K has a right to practise as a barrister by virtue of paragraph 206.1, and if the restrictions contained in paragraph 203 do not apply to him, he is accordingly free to exercise his right of audience. However, we can also see that section 31 of the Courts and Legal Services Act and paragraph 203 of the Code could be construed as having the effect that a barrister can only exercise a right of audience if he fulfils the specific criteria for doing so set out in paragraph 203. The latter construction has the merit of producing the result which both parties are agreed that the Bar Council must have intended when drafting the Code. In any event, the construction and effect of the relevant provisions of the Immigration and Asylum Act and of the Courts and Legal Services Act, when read in conjunction with different parts of the Code, are separate issues. While there is a superficial parallel between them, we do not base our decision that K was unqualified to provide immigration advice or services on the reasoning advanced by Mr Ratliff in relation to rights of audience under the Courts and Legal Services Act.

Postscript

28. Although we have held that K was not qualified to provide immigration advice or services, his belief that he was entitled to do so was a tenable view. His bona fides has not been questioned. These proceedings have served the purpose of establishing the proper construction of the relevant provisions of the Act and the Code. This could perhaps have been established by other means. Be that as it may, now that the point of principle has been established, we do not see what public purpose would be served by continuing with the criminal proceedings. It is not as if K has acted unscrupulously or is deserving of punishment. He has made clear his desire to keep within the law and we do not see what more would be gained by him incurring the stigma of a criminal conviction. It was sensible for the parties to ask the court to decide the question of his status as a preliminary issue. It has saved the time and costs of a jury trial. It has also obviated any need that this court is able to see for the case to continue.