QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
33 Bull Street
B e f o r e :
| THE QUEEN
on the application of STEVEN PRESCOTT
|- and -
THE GENERAL COUNCIL OF THE BAR
|- and -
THE UNIVERSITY OF LAW (BIRMINGHAM)
WordWave International Limited
A Merrill Communications Company
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Alison Padfield (instructed by BLM LLP) for the Defendant
The Interested Party neither appearing nor being represented
Hearing date: 30 June 2015
Crown Copyright ©
Mr Justice Hickinbottom:
The Regulatory Scheme
"4. To be called to the Bar by an Inn a person must:
1. be a member of that Inn;
2. complete (or be exempted from)
(a) the Academic Stage, and
(b) the Vocational Stage
of training; and
3. fulfil any applicable requirement to attend qualifying sessions.
5. To become qualified to practise as a barrister a person must:
1. be called by an Inn;
2. complete (or be exempted from) the Professional Stage of training; and
3. satisfy such further requirements as are set out in Part 3 of this Handbook.
6. The [BSB] may charge such fees as it prescribes for dealing with applications, conducting assessments or examinations and issuing certificates under Section 4B."
"The BPTC must reflect the requirement of this stage of training in terms of…the standards that are to be attained by students before they can be recognised as having successfully completed the course."
"The qualities needed for a career at the Bar are a mixture of attributes of temperament and of talent. As highlighted in the Bar Council of England and Wales' Final Report of the Working Party on Entry to the Bar (November 2007), these include a combination of honesty, courage, commitment, common sense, and perseverance, as well as analytical skills, intellect, persuasiveness, organisational skills, good judgment and fluency…. The ethos of the BPTC is to nurture and develop to a high level those existing attributes in candidates."
"The ethos of the course requires a method of delivery that:
- provides students with opportunities for learning by doing, and requires students to apply their knowledge in practical work
- requires students to play an active role in the course and to take responsibility for their own learning
- requires students to reflect on their own learning
- seeks to inculcate a professional approach to work and to develop in students a respect for the principles of professional ethics and
- seeks to provide students with an informed view of a barrister's working life."
"1 Professional Ethics and Conduct
2 The Knowledge Areas:
- Civil Litigation, evidence and remedies
- Criminal Litigation, evidence and sentencing
- Profession ethics
3 The Skills Areas:
- Opinion Writing
- Resolution of Dispute out of court (including negotiation, mediation and arbitration)
4 The Options"
These were to be assessed by a combination of formative assessments and final examinations, which were each subject to distinct regimes, details of which were set out in the BPTC Handbook.
"Assessment must consist, as a minimum, of one formal unseen time-constrained invigilated examination (where 'open book' materials may be used as specified in advance)….
In addition, at least five opinions covering a broad range of scenarios should be undertaken by students as formative exercises. Each exercise must require the application of legal research and legal knowledge, and on each of the six occasions, the student must receive individual feedback from the tutor. Poor English, grammar and syntax must be penalised."
Therefore, the skill of Opinion Writing was required to be tested by at least (i) five opinions, without any specific constraints on time or facilities, undertaken as formative exercises; and (ii) one formal unseen time-constrained invigilated examination.
"Does not satisfy the threshold requirement of the course. Work is inarticulate and of poor standard, faulty and badly expressed. The candidate is assessed as not (with the additional training of the 'first six' of pupillage) capable of producing work on which a prospective client could rely."
On a re-sit, the mark was capped at 60%, i.e. if the candidate obtained a mark of 60% or more, he passed but the mark was capped at that level when aggregating marks for the purposes of assessing the overall result. If he did not obtain a mark of 60% or more, he failed the BPTC.
"Failure in any assessment gives the right to one further opportunity to retake the failed assessment(s)… If there are two parts to a single assessment then it must be retaken as a whole even if only one part is failed…. A maximum of a total of two attempts shall therefore be permitted for any single assessment, excepting where documented and accepted extenuating circumstances… have caused an attempt to be assessed 'as if for the first time'. Where the course has been failed due to marginal failure in one re-sit only [at 57-59.9%...] or due to a Red Light fail in one re-sit only, then one further re-sit in that failed assessment will be permitted…".
"Where an assessment has been failed on two occasions, then the candidate shall be recorded as having failed the course. Where there are extenuating circumstances, and a 'first sit' has been allowed, then the number of attempts will be considered accordingly, but no more than two attempts (not affected by extenuating circumstances) will be allowed, excepting in circumstances detailed in 18.104.22.168 above. A candidate who fails the course in its entirety in this way will be permitted subsequently to apply for and retake the course (if the application is successful) ab initio at the same or a different Provider."
"Under no circumstances may a student's overall performance on the course compensate for partial failure in an assessment for the BPTC. All components of the course must be taken and passed satisfactorily."
"79. The [BSB] may grant exemptions from part or all of… the vocational stage… of training.
80. In exercising its discretion whether to grant an exemption from part or all of any Stage of training, the [BSB] will determine whether the relevant knowledge and experience of the applicant make it necessary for the applicant to do such training.
81. An exemption from part or all of any Stage of training may be granted unconditionally or subject to conditions, which may include in an appropriate case:
1. a requirement to do training instead of the training prescribed by this Section 4B; and/or
2. a condition that the applicant must pass the Bar Transfer Test."
"9.5 The Panel will have principal regard to the following:
9.5.1 The grant of an exemption from part or all of the three Stages of training is a discretionary and exceptional course, because the BTR provide that the Stages must be completed in full.
9.5.2 In exercising any discretion whether to grant an exemption, the Exemptions Panel will determine whether the relevant knowledge and experience of the applicant make it unnecessary for the applicant to undertake such training.
9.6 Because of the wide-ranging nature of potential circumstances which might suggest that an application is exceptional, it is not possible to set out any definitive guidance as to particular instances when the Qualifications Committee would be prepared to exercise its discretion and grant an exemption. The Committee will take into account all particular circumstances of the case in coming to a decision."
A Historical Perspective on Re-sits
"24. The Wood Review said (at paragraphs 137-141) that the Neuberger Report said that students who had passed the BVC at the basic level of 'Competent' were not viewed as competent by practitioners, and that the Wood Working Party supported that view; that under the (then) present system a piece of work which attracted 50% marks was classed as Competent even though by definition a significant proportion of the work was well below that level; and what counted as 'Competent' in a professional context must be in the Working Party's view be judged by professional point of view; and that work which was competent must be a recognisably professional piece of work offered by a newly-called barrister; and that, in quantitative terms, that meant a standard well in excess of 50%.
25. The option to re-sit assessment was considered by the Wood Review. At paragraph 73, the report states:
'Many of the students who fail first time round will pass after re-sits, which may be taken more than once. As a result of re-sits ultimate overall pass rates rise dramatically.'
26. At paragraph 25, the report recommends:
'We recommend that students who fail should be allowed one re-sit only.'
27. That recommendation was adopted as part of the framework of the BPTC when it replaced the BVC."
i) The "pass" mark should be raised from 50% to 60%.
ii) Candidates should be allowed to re-sit assessments/examinations only once.
iii) If a candidate failed an assessment/examination after re-sitting once, then he should be prohibited from retaking the course. In other words, such aspirants were prevented from ever becoming barristers.
Those recommendations were implemented by the Bar Council through the BSB.
"People who have failed the course may take it again ab initio (subject to acceptance on a course by a provider)."
The BPTC Handbook was amended accordingly, as reflected in paragraph B22.214.171.124 (quoted in paragraph 22 above).
The Bar Council's Functions
"Of all the modules this was the one that present real challenges to me and was my Achilles heel." (paragraph 3 of the same statement).
"I am in pursuing this matter on the following two grounds:
1. In my particular circumstances the rationality, fairness or reasonableness of designating my course result as Not Competent.
2. In my particular circumstances the rationality, fairness or reasonableness of the requirement to re-take the whole course and pay the full fee in order to practice [sic] at the Bar."
These have consistently been the two principal features of the Claimant's complaints to the BSB, and his challenge before this court.
Ground 1: The Claimant has already in fact shown himself competent in opinion writing, as evidenced in particular by his "Very competent" grade in his Personal Injury option which required the writing of an opinion. The BSB erred in law in not recognising that fact.
Ground 2: If, contrary to the assertion in Ground 1, the Claimant has not already shown himself to be competent in opinion writing, the BSB failed to exercise any discretion to consider exempting him from a part of the BPTC requirements, namely the requirement to re-take the whole course if an individual assessment is failed twice. The BSB has not brought its mind to bear on this matter.
Ground 3: If it had brought its mind to bear on the matter, then the BSB ought to have concluded that this is a case for the exercise of the discretion in favour of the Claimant, who ought to be allowed to re-take the Opinion Writing module alone. In particular, in all of the circumstances, including the Claimant's own personal circumstances, to require him to re-take the whole BPTC would be disproportionate on the basis that (a) it would breach the common law duty on a public body not to act disproportionately and/or (b) it would be in breach of his rights to private life under article 8 of the European Convention on Human Rights ("article 8").
Ground 4: The BSB failed to give adequate reasons for its decision not to accept that he had in fact sufficiently demonstrated competency in opinion writing, and/or not to modify the requirement to take the entire BPTC again.
I will propose dealing with these grounds in turn, covering the minor threads of argument on the way.
Ground 1: Substantive Demonstration of Competence
i) It directly challenges the BSB's judgment that, leaving aside carefully circumscribed circumstances such as specified extenuating circumstances and other categories into which the Claimant does not fall, in order to demonstrate competence sufficient to progress to pupillage, a candidate must pass each of the required BPTC assessments in the course of a single course period plus one re-sit. As I have explained, that decision of the BSB required professional and academic judgment, which was exercised with patent care and consideration, and which is unimpeachable in this court. The BSB was entitled to require every candidate, who did not fall within the exempted and excepted categories to which I have referred, successfully to conclude each element of the BPTC in that limited period. The setting of such standards, and how they might be met, is quintessentially a matter for the BSB – and not this court.
ii) Reliance on the Claimant's commendable success in the Personal Injury option is misplaced. As I understand it, that opinion was written over a week, with the benefit of various facilities: the part of the Option Writing assessment which the Claimant failed was time-constrained and unseen, thereby testing different skills and attributes. The BPTC Handbook required Opinion Writing to be assessed in that manner (paragraph A2.2.5(e), quoted at paragraph 19 above).
iii) Furthermore, paragraph B4.11.4 of the BPTC Handbook made clear that "All components of the course must be taken and passed satisfactorily", and that "in no circumstances" can a student's overall course performance compensate for individual assessment failures (see paragraph 23 above).
Ground 2: Failure to Exercise Discretion
Ground 3: Proportionality
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Mr Dixon contends that the requirement to retake the whole BPTC breaches the Claimant's right to respect for his private life.
"Sidabras was a very extreme case on its facts, since the statutory consequence of employment as KGB officers some years before was disbarment from employment in very many public and private employments, and the applicants complained of constant embarrassment. Effectively deprived on the ability to work, the applicants' ability to function as social beings was blighted. Such is not the lot of the… claimants, to whom every employment is open save that of hunting wild animals with dogs. But even on the extreme facts if Sidabras the court did not… find a breach of article 8 but contented itself with finding a breach of article 14 in the ambit of article 8."
Lord Bingham went on to conclude, in the last paragraph of , that "the claimants' complaints were very far removed from the values which article 8 exists to protect"; although he also proceeded to address the issue of justification, in the event that that firm conclusion was wrong. Those astute observations consequently make clear that, although article 8 might be relevant in some circumstances beyond the traditional scope of private life, it is not generally applicable across the whole gamut of business and professional affairs; and they advise caution when reliance is placed on respect to private life in the context of a business or professional context.
Ground 4: Inadequacy of Reasons