QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HENRY HENDRON
|- and -
|BAR STANDARDS BOARD
Zoe Gannon (instructed by BSB In-House) for the respondent
Hearing date: 20 March 2020
Crown Copyright ©
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MR JUSTICE FORDHAM:
Charge 1. Statement of Offence: Professional misconduct contrary to Core Duty 5 (CD5) of the Code of Conduct of the Bar of England and Wales (9th Edition). Particulars of Offence: On 13 April 2017, the Legal Ombudsman directed that Henry Hendron, an unregistered barrister, should reimburse fees of £650 and pay compensation of £200 to his former client, H by 16 May 2017 which was subsequently extended to 6 June 2017 by the Legal Ombudsman. Henry Hendron failed to reimburse any, or all of those fees, and failed to pay compensation to H by 16 May 2017 up to at least 12 September 2017. By doing so, Henry Hendron behaved in a way which was likely to diminish the trust and confidence which the public places in him or in the profession.
Charge 2. Statement of Offence: Professional misconduct contrary to rC71 of the Code of Conduct of the Bar of England and Wales (9th Edition). Particulars of Offence: Henry Hendron, an unregistered barrister, failed to give the Legal Ombudsman all reasonable assistance requested of him in connection with the determination of a complaint made under the Ombudsman scheme in that he failed to comply with the decision dated 13 April 2017 that he reimburse fees of £650 and pay £200 compensation to his former client, H, by 16 May 2017 which was subsequently extended to 6 June 2017 by the Legal Ombudsman.
Nature of This Appeal
The Suspended-Barrister Problem
What Should Happen Now?
i) The first strand is Mr Hendron's contention that, if he is right about the grounds on which he was pursuing the current appeal, remittal would for that reason be inappropriate. In light of that strand of resistance, Mr Hendron urged me to address, on their legal merits, the points which he was advancing on this appeal, notwithstanding the acceptance by everybody that the appeal must succeed on the basis of the point of law raised by Miss Gannon. Mr Hendron submitted that analysing the grounds of appeal would strengthen his position in resisting remittal, if and to the extent that his grounds were held by me to be well founded.
ii) The second strand is Mr Hendron's contention that, even if his grounds of appeal were not well-founded, remittal is in any event not a fair and justified course in all the circumstances.
Grounds Relating to the Power of Referral
i) In the December 2016 version of the Handbook the relevant rule (rE39) applied the DDP to a "non-authorised individual". The definition of "non-authorised individual" in that Handbook was "any individual who is not a BSB authorised individual or an authorised (non-BSB) individual but who is directly or indirectly employed by a Chambers, BSB legal services body, or a BSB authorised person". After his suspension from 17 May 2016, Mr Hendron was "not a BSB authorised individual or an authorised (non-BSB) individual". However, nor was he "directly or indirectly employed by a Chambers [etc]". On that basis, says the BSB, the DDP did not apply to him as at December 2016. Mr Hendron does not dispute that.
ii) The April 2017 version of the Handbook retained rE39, applying the same DDP to a "non-authorised individual". However, the definition had now been changed and "non-authorised individual" was now defined to mean "any individual who is not a BSB authorised individual or an authorised (non-BSB) individual". That definition now included Mr Hendron, from April 2017. That was the problem with the purported referral of Mr Hendron to a DT on 19 March 2018. Mr Hendron pointed out the problem, and on 12 April 2018 the BSB accepted the invalidity of the March 2018 referral.
iii) The May 2018 version of the Handbook contained an amended rE39, which maintained the DDP, applicable now to the following category: "a non-authorised individual (other than an unregistered barrister, a manager of a BSB entity or a registered European lawyer who does not have a current practising certificate) who at the time of the alleged conduct was an employee of a BSB authorised person". Now, an unregistered barrister was not the subject of the DDP and could be the subject of "an administrative sanction" imposed by the PCC (Professional Conduct Committee) or of "a referral to a Disciplinary Tribunal on charges of professional misconduct". It was against that backcloth, that the second referral was made on 20 July 2018.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
Mr Hendron submitted that the sanctions of suspension and prohibition were legally unavailable to the DT, because at the time of the alleged non-compliance with the Ombudsman's direction (i.e. May 2017 onwards), the DDP had been applicable to him as a suspended barrister. For a DT subsequently to impose a sanction of suspension or prohibition was the imposition of a "penalty" which was "heavier" than had been "applicable" in his class of case "at the time" of the conduct in question, in breach of ECHR Article 7. In support of the application of Article 7 to disciplinary sanctions Mr Hendron cited a passage in paragraph 68 of the judgment of Lang J in McCarthy v BSB  EWHC 969 (Admin), where Article 7 is referred to in the context of the temporal application of sanctions guidance, and which he submitted evidences the BSB's practice. He submitted that suspension falls within "penalty" and professional misconduct falls within "criminal offence", applying those autonomous concepts, addressed by reference to their substance, and having regard to the objectives and impact of the regulatory scheme and regulatory actions. He submitted that suspension of a barrister constitutes the deprivation of a profession, which he characterised as clearly "punitive". Alternatively, Mr Hendron describes there as being in play an "estoppel".
Grounds Relating to the DT's Findings of Breach
Grounds Relating to the DT's Sanctions
Whether to Remit the Case