England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2 October 2014

1. LORD JUSTICE LAWS: This case started life as an appeal by a member of the Bar pursuant to Section 24 of the Crime and Courts Act 2013 against a decision of the Disciplinary Tribunal of the Bar Tribunals and Adjudication Service (BTAS) on 3 February 2014 to find the appellant guilty upon two charges of professional misconduct. The charges were as follows:

"(1) RS [the appellant] engaged in conduct which was likely to bring the legal profession into disrepute in that on or before 15 March 2012 he created a document entitled 'Application to appeal against conviction' that was false and that he knew was false with the intention of misleading his client named as L in the charge sheet into believing that he had grounds to appeal his conviction when he knew that there were no grounds of appeal.

(2) RS between 1 March 2012 and 19 October 2012 in proceedings before the Court of Appeal (Criminal Division) recklessly misled the court by causing, allowing or inducing the court to believe that an application for leave to appeal against conviction was a true document and that there were genuine grounds of appeal when he knew that there were no such grounds of appeal and he failed to notify the Court of Appeal of this fact."

2. The hearing before the tribunal was conducted and the decision arrived at in the absence of the appellant. That fact was the whole basis of his appeal against this conviction as it was originally advanced.
3. The case came before my Lord, Mr Justice Cranston, and myself on 11 June 2014 when it became apparent that there were issues not by then properly explored upon the question whether the appeal against conviction was good. In those circumstances we adjourned the appeal for further skeleton arguments. They were provided. A great deal of paper, time and effort has been expended in relation to the appeal against conviction.
4. Within the last few days Mr Krolick of counsel has been instructed on the appellant's behalf and the appeal against conviction has been abandoned. I may say at this stage, in my judgment, that was a right and proper course. Mr Krolick has pursued only one application which is an application out of time for leave to appeal against the sanction imposed by the tribunal on charge 1, namely that the appellant be disbarred. This application is very late but Mr Wilson QC, on behalf of the Bar Standards Board (BSB), has made it clear that he takes no point as to time.
5. It is necessary to explain something of the history. The appellant was called to the Bar in 1988 and practised for over twenty years. In late 2011 he represented the man L at his trial in the Crown Court. L was convicted of drugs-related offences on 20 February 2011.
6. The chronology of events thereafter is of some importance. Historically, in the course of proceedings, as they have gone their leisurely way, there has been a degree of dispute or at least uncertainty over some aspects of the chronology. In light of all the documentation now before the court, I think the position is clear. On 6 January 2012 the appellant sent an email to Mr Italia, his instructing solicitor in the trial of L, attaching what he described as two "holding" grounds of appeal against his December 2011 conviction. On 7 January 2012 L was sentenced to forty-two months in a young offenders institution. On 10 February 2012 Mr Italia sent an email to the appellant indicating, so it appears, that the appellant would not be instructed as junior counsel in a different criminal case against L, one involving a murder charge. However on 5 March 2012 the appellant sent two emails to Mr Italia concerning L's application for leave to appeal against the December 2011 conviction. The second email attached grounds of appeal. These were identical to the so-called "holding" grounds of 6 January 2012 save that they included a series of introductory bullet points.
7. The next day 6 March 2012 the appropriate appeal grounds Form NG was completed by Mr Italia and the grounds received by him the day before from the appellant were signed by him "on behalf of" the appellant Mr Sukul. The grounds were received the next day at the Snaresbrook Crown Court and duly forwarded in the usual way to the Court of Appeal (Criminal Division). At length, the appellant was invited by that court to draft perfected grounds but he did not respond to that invitation.
8. The grounds, as they had been produced in March, were put before the single judge Mr Justice Mackay on 13 June 2012. On 2 July 2012 Mr Justice Mackay adjourned the application before permission to appeal. He stated that the application was defective; there was no accompanying advice; the two grounds of appeal were summarised, were vague, unparticularised and in some respects incomplete. He required a proper advice and grounds to be re-submitted. On 18 July 2012 the Court of Appeal communicated this decision to the appellant. The letter from the court continued:

"You have failed to respond to previous requests for dates and times to enable the Registrar to obtain a transcript of the ruling regarding the Section 78 application [I interpolate, that relates to one of the grounds of appeal], and for perfected grounds.

Unless dates and times and perfected grounds are provided by 1 August 2012, the application will be referred to the Registrar who will be invited to consider exercising his powers to require you to attend a directions hearing before him to explain why you have failed to do so."

9. On 13 September 2012 the Court Office notified the appellant that there would be a hearing on 27 September 2012 before Master Egan QC which the appellant should attend to explain his failures. On 17 September 2012 Mr Italia's firm - Duncan Lewis - wrote to the Court of Appeal confirming that the appellant had "always been the instructed advocate in this matter". The hearing before Master Egan was adjourned and was at length re-listed for 19 October 2012. Before that however on 11 October 2012 the appellant sent an email to Mr Italia having apparently just seen his firm's letter to the Court of Appeal. He took issue with a statement in the letter that he had been the instructed advocate in L's drugs case. He said:

"You must remember that I told you that there were NO PROSPECT OF AN APPEAL AGAINST THE SNARESBROOK CONVICTION. You asked me AS A FAVOUR to draft some grounds of appeal because you wanted to ingratiate yourself with L for him not to sack DL [Duncan Lewis] on his murder case. You promised me a case in return after you sacked me on the murder. You never gave me a thought, let alone a case."

Mr Italia replied, denying that the appellant had not been instructed.

10. The hearing before Master Egan followed on 19 October 2012. The appellant attended in person. As the case has proceeded, I should say the appellant has directed a good deal of criticism at Master Egan. He has suggested that the Master adopted a hectoring and aggressive style of questioning and that the hearing was convened in bad faith, being intended as a vehicle to facilitate a complaint about the appellant's conduct to the BSB. I mention those historic matters to make two things clear. First, nothing of the kind has been pursued by Mr Krolick before us. Secondly, the criticisms of Master Egan appear to me, having read the papers carefully, to be wholly unfounded. Moreover as it happens - although the appellant at various points in the history expressed earnest desire to see Master Egan cross-examined - there has been no contention in the original or amended grounds of appeal against conviction that the disciplinary tribunal should have caused that to happen.
11. We have a transcript of the hearing before Master Egan and there are a number of passages to which I should make reference. The appellant accepted that he had signed off the grounds of appeal attached to Form NG. In fact, as I have indicated, they were signed by Mr Italia "on behalf of" the appellant. However the appellant proceeded to tell the Master that "he had no professional locus in this case for many months". This appears at page 36 of the documents bundle:

"I made it so very clear not so long after the convictions in this case that in fact there were no viable grounds of appeal."

12. The Master pressed the appellant with the question why he had not provided an advice as he had been requested. Then this passage:

"MASTER EGAN: You were of the view that there were no grounds?

MR SUKUL: Yes.

MASTER EGAN: Your solicitor told you - - - - -

MR SUKUL: Yes.

MASTER EGAN: - - - - - to put in effectively holding grounds. Would that be right?

MR SUKUL: That would be right, yes.

MASTER EGAN: And it is in those circumstances - - - - -

MR SUKUL: Yes.

MASTER EGAN: - - - - - even though there were no grounds - - - - -

MR SUKUL: Yes, Master.

MASTER EGAN: - - - - - that you composed the document of March, even though your own view was that there were no grounds of appeal?

MR SUKUL: That is correct, Master, yes."

13. This ground was covered again. The Master said:

"MASTER EGAN: Mr Sukul, I do not want you to be at a disadvantage here, but on the face of it this seems to me to be far more serious than when I asked for the directions hearing, because it seems to be the position that you allowed yourself, even on your own evidence - or your own account - you allowed yourself to put in effectively untrue or misleading grounds to this court."

14. The appellant sought to take refuge in the fact that he himself had not placed the leave application before the Court of Appeal. He said:

"MR SUKUL: It was a matter for my solicitor. If he wanted to use the document, it was in his domain, not mine. I did not send that document to this court. I did not mislead this court."

15. The Master taxed the appellant with his failure to respond to the correspondence from the court. The appellant accepted that it was an error of judgment on his part. He also said:

"MR SUKUL: ..... When it became apparent to me, as you have quite rightly put it, that the document that I sent to my solicitors was being attached to a Form NG, which I did not sign or write, then is when I called and I said 'What is going on here? I am being asked by the Court of Appeal to do this work. It was never my intention for this to happen.' I helped solicitors because they wanted to continue the relationship with Mr [L] for perhaps pure economic reasons. That is why, and I helped because I wanted to continue to work. That is what took place, Master."

16. The hearing drew to an end. Master Egan gave a short judgment. He said:

"10 The chronology of the matter illustrates, in my judgment, a serious state of affairs. Counsel drafted what purported to be grounds of appeal, when clearly there were none. He should at the very least by April or June 2012, and certainly by July 2012, have been aware that his grounds were being used to service an application for leave to appeal when he was of the view that there were no grounds. He had an undoubted duty to inform the court as soon as possible. In my judgment - it will be a matter for others to decide - that is a very serious matter indeed. It amounts to something which, in my judgment, needs to be brought to the attention of the appropriate authorities, the Bar Standards Board. I intend to ask for a copy of this judgment to be sent to the Bar Standards Board."

That was effectively the case that went to the BSB, to which Master Egan sent a letter of complaint on 31 October 2012.

17. The BSB wrote to the appellant on 13 November notifying him of the complaint. They indicted the Board's decision to instigate a formal investigation, enclosed details of the complaint and required a response by 5 December 2012.
18. On 26 November 2012 the appellant emailed Mr Italia as follows:

"Rubin, the COA [Court of Appeal] has sent the complaint to the Bar Council. I am not wearing this one.

YOU KNOW FULL WELL THAT YOU ASKED ME TO DO THOSE GROUNDS OF APPEAL SO THAT YOU COULD APPEASE CL SO THAT HE DOES NOT SACK DUNCAN LEWIS FOR HIS MURDER AT THE BAILEY ..... YOU KNOW I SPEAK THE TRUTH RUBIN ..... THOSE GROUNDS I DID WAS TO HELP YOU ..... YOU SENT MY GROUNDS TO THE COURT OF APPEAL TO SHOW CL THAT YOU ARE WORKING ON HIS CASE SO THAT HE DOES NOT SACK DUNCAN LEWIS ..... YOU FILED MY GROUNDS WHEN YOU KNEW THAT I NEVER INTENDED FOR THAT DOCUMENT TO GO ANYWHERE NEAR THE CRIMINAL APPEALS OFFICE .....YOU HAVE PUT ME IN DEEP SHIT RUBIN AND NOW I AM ASKING YOU KINDLY TO DO WHAT YOU CAN TO LET THE BAR COUNCIL KNOW THAT I DID NO WRONG. I WAS TRYING TO HELP YOU.

REMEMBER ..... THE GROUNDS ARE DATED MARCH 2012 ..... CL WAS CONVICTED IN NOVEMBER 2011. THOSE DATES SHOW CLEARLY THAT THERE WERE NO PROSPECTS OF APPEAL IF NOT I WOULD HAVE FORMULATED GROUNDS WITHIN THE STATUTORY 28 DAYS OF CONVICTION."

19. Mr Italia replied the same day. I need not set out the terms of his email.
20. On 11 December 2012 the appellant sent an email to Pauline Murphy of the BSB evincing a response to the accusation. Further communications followed. They included a lengthy formal response to the complaint on 14 January 2013 to which we have been referred and which of course we have read. In it, the appellant denied any intention to mislead the Court of Appeal. He blamed the solicitors for having submitted Form NG without his knowledge. He complained about Master Egan's conduct as well as apologising for not having replied to the Court's letters.
21. On 6 February 2013 the Professional Conduct Committee decided to refer the matter to a tribunal. An indication was given on 30 May 2013 that the BSB did not intend to call Master Egan at the tribunal. There was considerable correspondence about this. It was the subject of energetic complaint by the appellant. However in light of the way in which matters have proceeded, I may pass over it.
22. There followed a protracted history leading ultimately to the tribunal hearing on 3 February 2014 in the appellant's absence. During the period leading up to the hearing nothing was heard whatever from the appellant between 3 October 2013 and 16 January 2014. There was an email from him on 16 January which in due course was put before the tribunal. On 23 January 2014 he emailed Miss Pindoria at the BSB as follows:

"I have retired from the profession and have emigrated from the UK. I am now residing in a 3rd world country. I now know there are no video-conferencing facilities here."

I interpolate, there was an issue as to whether the appellant might participate in the tribunal hearing by way of videolink. The email continued:

"I gave the BSB the 2014 dates I shall be in the UK. Any hearing that takes place at the behest of the BSB is void for violation of my statutory and common law rights, especially this hearing by reason of its history, and its nature and the conduct of the BSB."

In bold type the following observations appear:

"I have not forgotten that the man who the BSB appointed to determine my application to have Mr Eagan attend the hearing could not even spell my name for god's sake."

That was a reference to some interlocutory directions given by Mr Steinfeld QC (sitting as a Deputy Judge). The email continued:

"Who on earth would have any faith in him ..... or his employer the BSB. I do not accept for one instance that the BSB did not have a hand in all this, and one day the records would prove me right."

23. Less than half-an-hour later the appellant emailed Mr Burn at the BSB as follows:

"To date I have had NINE DIFFERENT PERSONS writing to me on the same subject matter. Incidentally, what is the BSB's reasons for not pursuing Duncan Lewis Solicitors ..... who are the primary wrongdoers in this case? WHAT CONNECTION AND RELATIONS DOES THE BSB HAVE WITH THOSE IN HIGH OFFICE AT DUNCAN LEWIS SOLICITORS? THIS MATTER IS RANCID WITH IRREGULARITY AND BAD BAD FAITH. ONE DAY ALL WILL BE REVEALED."

A little later (and in capitals):

"I CANNOT WIN THIS CASE ..... THAT WOULD MEAN THAT THE TRIBUNAL WOULD FIND AGAINST ONE OF THEIR OWN."

There is a further reference to Master Egan and the appellant's desire to have him cross-examined. He proceeds to indicate in the same email that he has -

"no asset in the UK so the BSB's plans to ruin me with a costs order shall not succeed."

24. The matter went to the tribunal on 3 February 2014. The tribunal chairman was His Honour Michael Baker QC. There were two lay and two barrister members. The BSB was represented by Mr John Wilson QC who has appeared before us on behalf of the BSB in this appeal.
25. The tribunal first considered whether to proceed in the appellant's absence. The relevant rule of procedure provided that if all procedural requirements had been met and the defendant did not attend -

"the tribunal may nevertheless proceed to hear and determine the charge ..... if it considers it just to do so." (See Procedure Rule E148)

In exercising this discretion which is "severely constrained", the tribunal were bound to apply "the utmost care and caution": (Norton [2014] EWHC Admin 2681, per Lord Justice Fulford, citing Jones [2003] 1 AC 1). The panel retired for about an hour to consider whether to proceed in the appellant's absence. It accepted that no authority was cited to them but Mr Wilson would have submitted, had the conviction appeal gone ahead, that it is plain they adopted a legally correct approach. They concluded that they should go ahead and gave clear reasons for that conclusion.

26. The principal averment of the appellant's appeal against the findings of guilt was the fact that the tribunal proceeded in his absence. I need not take further time with that, nor with the secondary suggestion which was the cause of our adjourning this matter in June 2014 that in fact he had a good defence to the professional charges against him, a defence which consisted essentially of the proposition that the grounds of appeal he had drafted for L were themselves perfectly arguable. Those assertions have rightly fallen by the wayside.
27. I turn to the application for leave to appeal against sentence. On charge 1 the appellant was disbarred. On charge 2 - which is not the subject of Mr Krolick's application but is relevant for context - he was suspended from practice for nine months. The tribunal in their sentencing remarks said:

"That brings us to the aggravating and mitigating features of this case. As far as mitigation is concerned, there has been an expression of remorse though it was limited to the second charge. It is inherent in the way the charge has been made on charge 2. It was reckless rather than intentional. That cannot be said in relation to charge 1. We treat the matter as a single incident though one of a protracted nature. There are however a number of aggravating features. In relation to charge 1 there is premeditation. There is an indirect motive of financial gain. There is an element of deception. His conduct in deceiving his client or taking a step which was intended to deceive his client is one which would undermine the profession in the eyes of the public and the same can be said of his conduct in relation to his reckless neglect of presenting the Criminal Appeal Office with the true situation despite being asked to in a number of letters. Charge 1 clearly is a charge of conduct in breach of trust and it is inescapable that it contained an element of dishonesty. There is also observable in relation to the first charge a lack of remorse for having committed the offence. The explanation that Mr Sukul volunteered for his conduct in drafting a notice of appeal which he knew to be both untrue and unarguable in itself exposed him to a charge of professional misconduct. The defence that he put forward as an explanation for what he did is one which was simply unprofessional in itself and speaks to his state of mind in relation to the whole matter. Those then are the mitigating and aggravating features of this case."

They proceeded to disbar the appellant on charge 1.

28. It is helpful, it seems to me, to notice some of the reasoning of the tribunal in finding the appellant guilty of the charges brought against him. The reasoning appears at paragraphs 23 to 31 of the decision of the tribunal which starts at page 97 of the core bundle. I will not read out the whole of those paragraphs but it is important to notice at paragraph 26 that they say:

"26 The tribunal concluded that they were unable to reject Mr Sukul's account of the reasons underlying his actions on the basis of Mr Italia's evidence.

27 The tribunal therefore proceeded on the basis that Mr Sukul's own account was credible. It was therefore possible that Mr Sukul drafted the notice of appeal at the request of Mr Italia and it was also possible that Mr Sukul may have believed that he was no longer instructed to represent his client in the appeal at some point after March 2012.

28 The tribunal found the first charge made out and misconduct proved to the criminal standard. The fact that the notice of appeal was false, that Mr Sukul knew of the falsity, was established by Mr Sukul's own admissions before Master Egan QC. The tribunal were satisfied so that they were sure also that Mr Sukul thought the document would be brought to the attention of his lay client. At page 122 of the bundle Mr Sukul himself referred to the lay client being shown the document in prison. Mr Sukul's account was that the document was produced to appease the lay client. The tribunal found that appease in this context meant to give the lay client some satisfaction, namely that an appeal would be mounted ..... "

29. It is Mr Krolick's contention that given that the tribunal were considering disbarment as a possible sanction and indeed at length concluded that it would be the sanction, they should have provided the appellant with an opportunity to make representations by way of mitigation. Perhaps he would have declined the opportunity; perhaps he would have taken up the benefit of it by way of written representations; perhaps he would have attended an adjourned hearing. At all events, it is said that the opportunity should have been given. In fact the tribunal proceeded at once to sentence after determining guilt. Mr Wilson has helpfully indicated to us this morning that according to his recollection the tribunal did not consider the possibility of adjourning so as to afford an opportunity for mitigation. The tribunal lacked personal information about the appellant. All they had was what was in the evidence in the case. Mr Krolick's skeleton argument contains submissions which he says would have been made on the appellant's behalf had the opportunity been provided (see paragraphs 14 and 15 of that skeleton argument).
30. The primary decision maker in such a case as this must be the expert tribunal. CPR Part 52.11 applies and provides:

"(1) Every appeal will be limited to a review of the decision of the lower court unless –

.....

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing."

It seems to us therefore in principle that if we consider that an opportunity to put forward mitigation should have been afforded by the tribunal, then the matter should be remitted to them for further consideration of sanction unless we were of the view that the sanction of disbarment was simply inevitable. Mr Wilson who has assisted us throughout this case does not urge any contrary view.

31. We have been shown the sentencing guidance for breaches of the Bar Code of Conduct, the applicable version of which is dated April 2009. Section C is headed "Conduct during proceedings and in court" and C1 is "Making submissions that are not properly arguable or making allegations of fraud not supported by evidence". This is not a case involving any allegation of fraud. The text under C1 has this -

"Barristers have a duty to ensure they do not make submissions, or draft documents, that are not properly arguable or supported by evidence. In particular, allegations of fraud should be supported by evidence regardless of the client's instructions .....

Range of Sanctions: As the circumstances surrounding these breaches can vary widely, the appropriate sanction may range from giving advice to disbarment. One key factor to take into account in determining the level of sanction is whether the breach was committed intentionally. Protection of the public is particularly relevant in relation to allegations of fraud, as such allegations are usually made against an individual and therefore may impact on the credibility and reputation of that person."

32. Below these paragraphs there is a table with a heading "Common circumstances" on the left and "Sanction starting point" on the right. Under "Common circumstances" item C states -

"Making intentional unsupported submissions or allegations of fraud."

Under "Sanction starting point" item C states -

"Medium suspension to disbarment."

Further headings set out "Aggravating factors" and "Mitigating factors". There is also an extensive list of aggravating and mitigating factors at Annex 1 (page 58 of the document).

33. Mr Krolick's submission is that it was by no means inevitable here that the appellant should be disbarred on charge 1. He accepts, and we would certainly find, that it was a serious matter. As it seems to me, it is plain that the appellant knowingly provided grounds of appeal in which he had no belief whatever in order to please his previous instructing solicitor Mr Italia who, in turn, wished to please or "appease" as it was put, his client. That was a grave matter. The appellant had no faith in the grounds he put forward. He must have known, despite at some points assertions to the contrary, that the client would be shown those grounds and supposedly given comfort by them. Quite apart from the circumstances surrounding ground 2, which relates to the fate of these grounds before the Court of Appeal, the acts which constitute ground 1 seem to us to be very serious. However they did not include allegations of fraud. It is plain that despite the tribunal's reference to pre-meditation, that was not a separate aggravating factor. Of course the grounds were drafted intentionally. It is difficult to see how grounds might be drafted otherwise.
34. It cannot be said, to take the matter shortly, that this was necessarily at the top range of offences covered by the table under "Common circumstances" item C. I make it clear that I would not hold that disbarment was necessarily the wrong sentence here but it seems to me that there is plainly an argument as to whether or not it was. In those circumstances for my part I think it right that the tribunal should have afforded an opportunity for this appellant to make representations as to sanction once they had found him guilty of the professional charges before them. Such an opportunity should properly have been provided, notwithstanding all the negative features of this appellant's previous communications with the BSB or the Tribunal.
35. In those circumstances I would grant leave to appeal out of time against sanction and allow the appeal on the specific basis which I have indicated, namely that an opportunity should have been given to allow representations by way of mitigation. I would further direct, if my Lord agrees in the outcome, that the matter be re-listed before a differently constituted tribunal for them to allow such an opportunity and proceed to re-sentence the appellant on charge 1.
36. MR JUSTICE CRANSTON: I agree.
37. LORD JUSTICE LAWS: Does this mean we should quash the sentence actually imposed on charge 1, Mr Wilson?
38. MR WILSON: I think it does.
39. LORD JUSTICE LAWS: It must do, must it not? They may be sentenced likewise.
40. It follows from this decision that the sentence on charge 1 will be quashed.
41. MR KROLICK: I am grateful. There is no application for legal costs.
42. LORD JUSTICE LAWS: We are grateful to you Mr Krolick for assisting us at very short notice, and to you for your assistance throughout Mr Wilson.
43. MR KROLICK: Would your Lordship make it clear that I was first instructed within the last few days?
44. LORD JUSTICE LAWS: Did I not say that?
45. MR KROLICK: You said within the last few days Mr Krolick was instructed. I think there was an error by your Lordship. I think you said sentence of the client in the drugs case was 7 January.
46. LORD JUSTICE LAWS: Was that wrong?
47. MR KROLICK: I think it was 7 February.
48. LORD JUSTICE LAWS: Perhaps that could be corrected as well. I saw that in the documents. I may have noted it wrongly.
49. MR WILSON: For the avoidance of doubt, this matter obviously would be before a reconstituted five-person tribunal.
50. LORD JUSTICE LAWS: Yes, a reconstituted five-person tribunal.