England and Wales High Court (Administrative Court) Decisions

GARRETT T. BYRNE ESQ. and MONICA FISHER CHRISTOPHER JOHN LOWRY ( STUDENT) and HONOURABLE SOCIETY OF MIDDLE TEMPLE [2000] EWHC Admin 427 (6th December, 2000)

VISITORS TO THE INNS OF COURT

Royal Courts of Justice

Strand, London WC2A 2LL

Wednesday 6^th December 2000

This is an appeal by Mr Christopher John Lowry from a decision of the Masters of the Bench of the Middle Temple in Parliament to refuse him admission to the Inn. We have already dismissed his appeal and now give our reasons.

Mr Lowry who is 44, applied to the Middle Temple for admission as a student in December 1999. In a signed statement annexed to his application he disclosed a conviction in 1988 for theft and he was invited to attend for interview before a Student Tribunal. This interview took place on 15^th March 2000, the interviewing Masters of the Bench being Mr Christopher Morcom QC, Mr Justice Pumfrey and His Honour Judge Doctor Peter Jackson. They made a recommendation to Parliament of the Middle Temple that he should not be admitted as a student stating their belief that there was a continuing doubt as to his honesty, especially in any situation in which he might find himself under pressures of the kind which are inevitably encountered in practice at the Bar. It is this conclusion which Mr Lowry, through his counsel, Mr Phillip Mott QC, has sought to challenge before us.

The offence of theft of petrol took place in late 1987. He drove off without paying having filled the tank of his car with petrol. He was conditionally discharged by magistrates for 12 months. The Student Tribunal accepted, as the magistrates must have done, that there was considerable mitigation for the offence. What he did, in his own words was:

"Completely out of character at the end of a long period of exceptional personal stress and anguish following a series of tragic circumstances".

These included both the death of his Father in Law and Mother from terminal cancer and the failure of a shop business that he carried on which left him with substantial debt. However, a greater tragedy afflicted his family. The second daughter died aged 2½ suddenly from meningitis. The grief and bewilderment felt by Mr Lowry and his wife were added to because the cause of death had to be investigated and could not be ascertained for several months. In the result he lost a new valuable employment that he had just obtained. At the time of his offence he was employed by Securicor in a responsible position. They would without doubt had dismissed him on learning of the conviction but also understandably, they viewed the fact of an employee being in debt as presenting a security risk. Securicor were unaware of his financial difficulties which continued. In the end, after advice from the Citizens Advice Bureau he and his wife began to live on his monthly salary only without further recourse to credit and one result was that his funds were exhausted at least a week before his next salary cheque was due. He had already taken two separate weeks off work claiming that he was sick when the reality was that he had run out of money to buy petrol to get to work. It was in that situation to obtain petrol for travel to work that he committed this offence.

So far the facts are not in dispute. In his signed statement Mr Lowry had stated that his intention had been to return to the filling station the next week as soon as he was paid. The Student Tribunal were concerned as to whether he had told the magistrates that he intended to go back and pay. His statement accompanying his application was silent as to this. What he said when questioned about what had been said to the magistrates appears at page 5 in the transcript where he is being questioned by Judge Jackson:

Q Finally this: when you were appearing in front of the Magistrates, no doubt the time came when they asked you if there was anything you wanted to say on your own behalf?

A Yes

Q Did you explain to them what had happened?

A Yes, I did, and the police also did. The police were very, very helpful.

Q Did you say to them that you intended to pay the next day?

A It had already been paid.

Q No

A Sorry, that I intended to pay. I intended to pay at the end of the week when I got my next pay cheque.

Q Yes, quite right, you correct me. Did you tell the Bench that that was in our mind at the time of the offence?

A As far as I can remember, I did. It is obviously very hazy, but I am sure I did. I was very contrite about it.

Q That was central to your position, was it not, that really what you were saying was: "Yes, I accept that I have done wrong but, in fact, I explain myself in this way: that I did not intend to get away with it forever, I did intend to go back and pay". That was rather central to your position?

A Yes it was. I did say something along those lines, and added that, in fact, my father had paid it, or attempted to pay it, almost immediately afterwards. The position was, as often happens between father and son, my father knew nothing of my debts until that situation. Once he knew that that had happened he offered, first of all, to pay Texaco, which was the company, and they refused his offer. Then he also paid half of my debts off for me within the next six months after that.

The Student Tribunal expressed their view at paragraph 17 of their report to Parliament in these terms:

"We have been greatly concerned about this case. We accept that there were very strong mitigating factors leading up to the commission of the offence of which he was convicted. The explanation of the fact that he was given a conditional discharge, rather than an absolute discharge, is consistent with the practice of the courts. But we are troubled about his account of what took place at the Magistrates' Court. It is clear from his statement that had given some thought to the question of a possible defence, and if he really had told the court that he had intended to pay later, we would have not have expected him to be so vague, as he was. Although we accept that there can still be occasions when a Magistrates' court accepts a plea of guilty although the stated facts indicate the existence of a possible defence, we found ourselves unable to accept that Mr Lowry in fact had told the court that he had intended to pay for the petrol later".

Mr Mott submitted that in basing themselves on inferences drawn from their view that Mr Lowry was vague about what was said at the Magist1rates' court, the Tribunal failed to take sufficiently into account that the proceedings had taken place 12 years before, that it was Mr Lowry's first appearance in court on a highly emotional occasion and that he was not legally represented at the time. The Student Tribunal had, themselves recognised that there are occasions when a Magistrates' court accepts a plea of guilty even though the stated facts indicate the existence of a possible defence.

Mr David Farrer QC, on behalf of the Middle Temple, submitted that the Student Tribunal saw and heard Mr Lowry. Their view was based on a combination of seeing and hearing him and study of the words used by him. He stressed that in his written statement he made no reference to telling the magistrates of his intention to pay and it could be seen from the questions and answers we have already quoted on page 5 that he was being evasive and not answering the questions directly. The Student Tribunal was entitled to conclude that firstly, this painful occasion must have been uniquely memorable to someone in Mr Lowry's position. Secondly, that regardless of legal knowledge or representation the possible significance, if only for sentence, of an intention to pay later must have been plain and accordingly his uncertainty as to whether he made reference to such an intention was not credible.

The report of the Student Tribunal referred to a further matter described by both counsel as a subsidiary. Their conclusions as to this are to be found in paragraph 18 of their report:

"We form the view that at the time Mr Lowry's overriding concern was that Securicor should never learn about what had happened. This seemed clear from his written statement.....and from his request that the Bench should exclude the press. In our view his statement to us at interview that he just wanted to get it over and done with was not the whole truth".

Mr Mott, criticising this view, referred to his statement in which he made it clear that:

"Because of the nature of my employment at that time I had refused legal advice and pleaded guilty so as to minimise the proceedings and possible local publicity that may have invited".

The statement went on to say that the magistrates agreed not to mention his occupation to the public gallery. It was clear from the opening remarks in the interview that the Student Tribunal had read that statement. It is true that he had said (transcript page 2) that his reason for refusing legal advice was:

"I just wanted to get it out of the way. I was completely and thoroughly ashamed at what I had done. I could not believe what I had done. I did not want to have a long drawn out case going on. There was a possibility, I suppose, that a solicitor might well have found a defence. I wanted to get it over and done with; forgotten about and to get on with my life."

However, Mr Mott submitted that on page 5 of the transcript there was a reference to the magistrates saying they would not mention his employment at all. Further, on 12^th May, before he had seen the report he sent an Email to the Middle Temple where he said this:

"As I believe I pointed out in the interview, my concern at the time was to minimise the potential for a heavy sentence, avoid any publicity at all which may have put my precarious financial situation at more risk and I was keen to put the whole situation behind me and try to rebuild life and that of my family. This I was able to do".

That Email would have been before Parliament when they considered the report of the Student Tribunal. Mr Mott submitted that any conclusion that Mr Lowry had been deliberately economical with the truth in interview, even if that view was open to the Student Tribunal, was no longer tenable after the Email was received.

Mr Farrer submitted that the Student Tribunal had been faced with a difference between the explanation given in his statement and the answer at page 2 in the transcript and the Tribunal made, as they were entitled to do, the moderate and justified comment that the remarks in evidence were not the whole truth. The subsequent Email could not affect the Tribunal's judgment of answers given at the hearing nor Parliament's acceptance on that judgment.

An appeal to the visitors is an appeal and not a review. The visitors look afresh at the matters in dispute and form their own views. In the absence of fresh evidence the appeal is comparable to an appeal to the Civil Division of Court of Appeal: See Sir Donald Nicholls VC R v. Visitors to the Inns of Court Ex Parte Calder 1994 QB 1 at 42. It is clear that the fact of the conviction for theft in 1987 would not on its own justify a refusal to admit. It is also clear that the Student Tribunal and Parliament took into account not only the conviction but the perceived lack of candour at interview in March 2000. We accept the test put forward by Mr Farrer, namely, what is the correct assessment of his integrity today. The Student Tribunal had the advantage not available to us of being able to see and hear Mr Lowry as he responded to their questions. We think that we are entitled to take into account that three experienced practitioners coming from both Bench and Bar, gained the impression from what they heard and saw that Mr Lowry was not being candid with them and that is evidence in itself on which we can act. Of course if in some way the reasoning in their report was seriously flawed when they expressed a continuing doubt as to his honesty, then we could well arrive at a different conclusion. However, their reasoning was not defective. A telling point against Mr Lowry is that nowhere in his long statement regarding his previous spent conviction does he refer to telling the magistrates that he intended to pay. Legal knowledge is not required to tell a person of ordinary common sense this can amount at the very least to substantial mitigation if accepted. The passage at page 5 in the transcript we have referred to struck us as it obviously struck the Student Tribunal as evasive. It was clearly not something that Mr Lowry had planned to use as explanation and the Student Tribunal were right to view with considerable scepticism as we do, his claim that he now remembered he had told the Bench he had intended to pay. The inescapable conclusion we come to, having been taken through all the material, is that Mr Lowry, perhaps on the spur of the moment, misrepresented to those interviewing him what he had said to the magistrates. That was the conclusion the Student Tribunal reluctantly came to.

Although the subsidiary issue as to whether he had told the interviewers the whole truth there was a factor in their decision that clearly was not the major concern that they had over his honesty. It was an ill considered answer that did not help him but we are of the view that in other parts, both of his written narrative and his interview and in the Email he did stress his overriding concern that Securicor should not learn about what had happened and dismiss him. Basing ourselves on the untruthful assertion that he had told the magistrates he had intended to pay for the petrol later we are of the view that the Student Tribunal and then Parliament of the Middle Temple came to a correct conclusion. The Student Tribunal concluded their report in these words:

"The public expectation of the Bar is, and must remain, one of complete integrity. The Bar and the Inns of Court who are responsible for the admission to the profession have to maintain the highest standards. Whilst having considerable sympathy for Mr Lowry and his family in their misfortunes in the period prior to his conviction, we are not satisfied that he measures up to the necessary standards".

With that statement we are in entire agreement. Those intending to practise at the Bar must demonstrate so far as they can that they are able to cope with pressures both in their personal and professional lives. The administration of justice depends on the trust which is placed by the court in the advocates which appear before it and there must here be serious doubt as to Mr Lowry's suitability for admission based not solely on his conviction of 12 years ago, but on his lack of candour in giving information to the Inn to which he wished to be admitted. For these reasons we dismiss this appeal.