Jersey Unreported Judgments

Bar application

[2021]JRC129

Royal Court

(Samedi)

4 May 2021

Before     :

Sir William Bailhache, Commissioner, and Jurats Ramsden, Thomas, Ronge, Pitman and Dulake

 

 

REPRESENTATION OF HER MAJESTY'S ATTORNEY GENERAL

AND IN THE MATTER OF THE ADVOCATES AND SOLICITORS (JERSEY) LAW 1997

Advocate J. C. Gollop for the Attorney General.

Advocate J. W. Angus for B.

Advocate S. J. Young for the Law Society of Jersey. 

judgment

the COMMISSIONER:

Introduction

1.        The Court was convened on the representation of the Attorney General to consider the application of B for admission to the Jersey Bar.  The application was heard in private and this Judgment has been redacted for the purposes of publication.  The representation was to have been heard in February but was adjourned so that the Law Society of Jersey could be convened for the purpose of making submissions as to the application of the fit and proper test which the Court is required to consider under Article 3 of the Advocates and Solicitors (Jersey) Law 1997 (the "Law") .

The facts

2.        B is a Barrister of the Inner Temple having been called to the English Bar in November 2004.  He obtained a tenancy in a specialist criminal set of chambers in England.  He had a successful career in that country and the Court has seen a number of references, including judicial references, as to that success.  At one point, it was possible that he might join the Treasury Counsel team at the Central Criminal Court in London.  It is a measure of his professional reputation that he was instructed by the Attorney General of England to appear in the Court of Appeal on AG references regarding allegedly unduly lenient sentences.  In June 2017, B applied to join the Jersey Law Officers' Department.  He was interviewed in September 2017 and accepted the offer to that position in October that year.  After his application, but before his interview, B was informed by the Bar Tribunals and Adjudication Service (BTAS) that a complaint had been received concerning his conduct. 

3.        B had at that time been a voluntary mentor for aspiring barristers in the Inner Temple for some two years.  The Complainant was a female aged 26 and a mentee of B.  She alleged that on the second mentoring session between her and B, which took place in November 2016, he intentionally touched her in a sexual manner without her consent, and that he did not reasonably believe that she did consent.  She did not make, although she could have made, a criminal complaint in this respect.  Some time after he had commenced employment at the Law Officers Department, B was told that an investigation would be carried out and in November 2018, B was notified that a hearing would take place before the BTAS to determine four charges of professional misconduct in relation to the incident described.  The hearing in fact took place between 20^th and 22^nd November 2019, when the Tribunal found by a majority that the Bar Standards Board had proved charges 1 and 2 to the required criminal standard.  The Tribunal made no findings on the remaining charges which were therefore dismissed.  The Tribunal imposed as a penalty a suspension of six months on each of charges 1 and 2 concurrent.

4.        B had denied the underlying allegations before the Tribunal and he continues to do so.  He puts it this way in his affidavit:

"I approach the Court with no desire whatever to seek to revisit (and certainly not to relitigate) the findings of the BTAS Investigation....... I owe my utmost good faith and primary duty to this Court.  I therefore feel obliged to say that in my heart I do still deny that I touched the complainant in an unwanted and sexual way.  However, the Court should treat me as the subject of these findings as set out the in the BTAS judgment:  that was the decision reached, to my great shame, by a majority of the panel members and for which I was sanctioned."

5.        B used annual leave from the Law Officers' Department to attend the Tribunal Hearing and was notified of its decision on the evening of 20^th November 2019.  The Bar Standards Board issued a press release on 26 November 2019, following which B was asked about the BTAS finding by the Director of the Criminal Division in the Law Officers' Department.  Thus, it was only at that stage that the Attorney General, and B's line management in the Law Officers' Department became aware of the Tribunal proceedings. 

6.        Following a disciplinary enquiry in Jersey, in accordance with States' procedures, a disciplinary hearing took place on 2^nd March 2020.  The allegations were that in the light of the findings by the Tribunal, the employee had by his conduct brought or risked bringing the Law Officers' Department into disrepute; furthermore, by not disclosing to the Law Officers' Department that he was subject to an investigation and/or hearing, B had acted misleadingly, dishonestly, or in breach of the States of Jersey Code of Conduct.  The disciplinary hearing concluded that the B had breached the Government of Jersey Disciplinary Rules and that this was a serious matter which required more by way of sanction than taking no action or giving a written warning.  Accordingly, the panel recommended that a final written warning should be given to B, with the additional sanction of suspension without pay from the date of the hearing panel to the end of the Bar Standards Board suspension period.  In doing so, it was intended that the sanction considered the reputational risk for the Law Officers during the period of suspension while at the same time providing B with a route back into employment.

7.        Article 3(1) of the Advocates and Solicitors (Jersey) Law 1997 ("the Law") provides as follows:

"3.      Requirements for admission to the Bar

(1)       A person shall be entitled to be admitted to the Bar if -

(a)    

(b)     the person fulfils the requirements in paragraph (2) or (3); and

(c)     the Royal Court is satisfied that the person is a fit and proper person to be admitted."

8.        There is no dispute that B satisfies the requirements of sub paragraph (b).  The question is whether this Court regards him as a fit and proper person to be admitted to the Bar in accordance with Article 3(1)(c) having regard to:

(i)        the BTAS finding and sanction in November 2019, and

(ii)       the failure of B to notify the Attorney General at or before the time of his interview of the existence of the complaint and subsequently to notify the Attorney General of the progress of the investigation and/or the prospective hearing and the decision.

9.        The Chairman of the Disciplinary Hearing said:

" [B] should have informed the LOD at the earliest opportunity that there was an ongoing case being investigated and considered by the [Bar Standards Board].  It is difficult to conclude that [B] misled the LOD as he did not discuss or disclose the matter, however, by failing to disclose the matter while working at the Department, the SoJ investigator concluded that his actions 'do not meet the standards required by the States of Jersey Code of Conduct in relation to his integrity and honesty'."

10.      Advocate Gollop, who has been instructed by the Attorney General as the latter considers he is under a conflict as a result of B being employed in the Law Officers' Department, submits that in all the circumstances B is a fit and proper person for the purposes of Article 3(1)(c) of the Law.  Advocate Gollop told us that his retention as counsel was expressly on the basis that he would be able to decide conclusions on the part of the Attorney General without reference to him.  It is said that B's conduct occurred over 4 years ago, a slightly longer gap than was being considered in In re A [2012] (1) JLR 197.  Furthermore, it is said that the charges, whilst serious and found to the criminal standard, were not criminal offences.  B is able to practise again in England and Wales, and indeed is able now to carry out his functions at the Law Officers' Department.  He has suffered a significant period of suspension from practice and from his work with financial consequences and is subject to a 12-month final written warning which expired in March 2021.  He has otherwise been of good character in his time with the Law Officers' Department.  He has been and is remorseful for his failure to make disclosure of the BTAS proceedings to the Law Officers at an earlier stage and has apologised to them and to the Court in that respect.  The Attorney General has accepted his apology.

11.      B has put before us an affidavit in which he explains in detail his position in relation to the BTAS proceedings, his career to date and the various mental health challenges which he has had to face since being notified of the complaint made against him in 2017.  It is unnecessary to set these challenges out in detail; it is sufficient to say that the Court accepts that they were of the utmost seriousness.  He describes being unable to think straight or rationally as regards any aspect of the Bar Standards Board investigation.  He has provided a number of references to us which show him not only to be professionally very competent but also to be a person of integrity who has, as a result of human frailty, experienced serious mental health problems.  This is tendered not as a justification but as an explanation for his failure to meet his normal high standards.  In that connection, Advocate Angus accepts on behalf of B that the failure to disclose the BTAS investigation to his employer was a serious error of judgment on the part of B, who missed several opportunities to do so.

12.      In the bundle put before us for this hearing, there is included an extract from the debate in the States when the amendment to the Law, which introduced the "fit and proper" provision, was adopted by the States in 2007.  That extract shows the then Solicitor General was asked in the States Assembly about what defines a fit and proper person.  Put on the spot in the Assembly without notice (as is frequently the case) the then Solicitor General said this:

"it means a fit and proper person in the context of what the Court is deciding which is, is this person fit and proper to be entrusted with the legal affairs of members of the public?  A lawyer gives a client advice.  A lawyer handles clients' money, a lawyer receives clients' confidences.  When a lawyer appears in court it is the traditional position that the court is entitled to rely upon the word of the lawyer as being an officer of the court without any other formalities.  Fit and proper means the person can be trusted to discharge those various functions and responsibilities ...... the question is, is that person fit and proper to be entrusted with the affairs of clients who should be able to put an implicit trust in their lawyers?"

13.      In his written submissions, Advocate Angus answers these particular questions affirmatively and submits that the errant behaviour of B is at odds with his otherwise good character and that he poses no risk of future errant behaviour if admitted to the Jersey Bar.

14.      In AG v Dunlop [2015] JRC 007, the Law Society of Jersey ("the Law Society") intervened in a representation brought by the Attorney General by which the Court was invited to indicate, on the facts relevant to that case, whether the Respondent was qualified for admission to the Bar as an advocate pursuant to Article 8 of the Law.  The question in that case related to the period of time in which the Respondent could be said to have been employed in a relevant office.  The Law Society intervened because that question had relevance for the profession at large.  However, the intervention by the Law Society on that occasion was justified because the matter in question concerned lawyers generally.  In the present case, we convened the Law Society because it has an interest in the reputation of the Bar as a whole and its views as to what those standards of fitness and propriety might be, whilst not in any sense conclusive, are relevant features for the Court to consider.  In some cases it may well not be necessary to convene the Law Society - AG v Manning [2019] JRC 171 was a case where the respondent had been sentenced to 3½ years imprisonment in respect of 20 counts of fraudulent conversion, one count of fraudulent conversion by a trustee and one count of failing to comply with the requirements of the Money Laundering (Jersey) Order 2008.  The disciplinary process was invoked and the respondent was removed from the roll of solicitors.  As the court said in that case, there was really no alternative to striking the respondent from the roll.

15.      In Bolton v Law Society [1994] 1WLR 512, the Court of Appeal of England and Wales was considering an appeal by the Law Society against a decision of the court below by which a Law Society-imposed penalty of suspension was quashed and a fine imposed in substitution.  At page 516F, Sir Thomas Bingham MR (as he then was) referred to the decision in McCoan v General Medical Council [1964] 1 WLR 1107, in which the Judicial Committee of the Privy Council said at page 113:

"..... their Lordships agree with Lord Goddard CJ in re A Solicitor [1956] 1WLR 1312, when he said that it would require a very strong case to interfere with sentence in such a case, because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct."

16.      The Master of the Rolls continued:

"It is not, I think, necessary to explore the authorities which lead up to that statement of principle at any length since there is no controversy about the correctness of that principle which, for the last 30 years at least, has been very clearly understood and very regularly applied."

17.      The reputation of the profession at large is likely to be affected by the admission of any applicant who is not a fit and proper person, and the views of the Law Society will therefore be treated as particularly relevant.

18.      In the present case, some of the observations filed by the Law Society have sensitively concentrated for the most part on the effect on the Applicant if he were not to be admitted.  For reasons to which we will come shortly, and although we are impressed with the sensitivity of the approach which has been taken, we do not find the thrust of that approach to be correct.

19.       The Law Society also submits that:

"It is difficult to see that this incident was anything other a very unfortunate aberration in what would otherwise appear to be an individual set to achieve the highest standards in his professional life."

It then goes on to consider whether one instance of dishonesty in what would otherwise appear to be an exemplary career is acceptable in the light of the explanations and references provided.  The concluding submissions of the Law Society point out that the States of Jersey Disciplinary Panel finding is conclusive as to dishonest behaviour but does not speak of dishonest character; and this can be explained by apparently deep rooted mental health issues brought about by the complaint made against him.  The submission therefore is that the Applicant's dishonest behaviour relates to an isolated incident.  Furthermore, and correctly, the Law Society point out that this court has the benefit of a report by an accredited counsellor to the Applicant which was not available to the Disciplinary Panel or to the States of Jersey investigator.  The Law Society submits that where there is a lack of honesty, it must be explicable in such a way as to remove any inference that there exists a residual lack of integrity or existence of moral turpitude, and that such an explanation is provided both by the counsellor's report and by references which have been provided.

20.      The Law Society's concluding suggestion was that there should be some additional sanction which would reflect the seriousness of this omission to inform the Attorney General of the complaint and the progress of the investigation into it.  That additional sanction is suggested as a period of, in effect, a further six months until September 2021, before the Applicant might be admitted.

Discussion

21.      In the matter of A [2012] JRC 043, the court indicated that it could only fulfil its function of deciding whether an applicant was a fit and proper person if an applicant met a "high obligation" to inform the Attorney General of any previous convictions and any other matter which might reasonably be thought capable of bearing on the question of whether that applicant is fit and proper for admission.  The court said that any failure to make full and frank disclosure would be regarded as a serious case of professional misconduct.  The court went on:

"22. It is of the greatest importance to the administration of justice that members of the legal profession showed the highest standards of honesty and integrity and did not behave in a manner liable to bring the profession into disrepute.  An applicant must demonstrate that he has not been in breach of these requirements.

23. It follows that any applicant who has shown a lack of honesty or integrity may well not be admitted.  ...

24.   In our judgment, the observations of the Inns Conduct Committee of the Counsel of the Inns of Court [in A's case] are equally applicable in Jersey and we would summarise them as follows:-

(i)       a new entrant to the profession must be able to demonstrate good character;

(ii)      there should be a significant period of time between the commission of an offence of violence and admission to the Jersey Bar so as to ensure that the Royal Court can be confident that the offence was out of character;

(iii)     unless there are exceptional circumstances, that period should in principle be at least three years and should be known to be at least three years in order to uphold the reputation and image of the profession;

(iv)    a more serious case than the present may justify either a longer period than three years or refusal of admission, depending upon the circumstances.

 ...

26. The fact that a person has been accepted as suitable for call to the English Bar does not mean that this court will necessarily reach the same decision in respect of the Jersey Bar.  We must reach our own conclusion. ..."

22.      These are the principles which emerge from the decision In the matter of A, and we agree with them.  On the facts, the court decided in the case of A that he was a fit and proper person to be admitted.  Those were different facts from those which apply here but the principles set out in the case are helpful.  We expressly endorse the conclusion that the Royal Court must reach its own conclusions about the fitness of any applicant.  That is not just because the Law says so, although that of course does mean we have no choice in the matter: it is also a recognition that in this small community there might be occasions where the circumstances carry more difficulty for an aspirant lawyer than would be apparent in a larger one.

23.      There are, however, some further points of principle which appear to us to be relevant.  We summarise them as follows:

(i)        In considering the fit and proper test under Article 3(1)(c) of the Law, the Court is not limited to considering whether the Applicant is of good character in the sense of having no relevant previous convictions.  Although it can be implied in the judgment in the matter of A, we wish to emphasise for the avoidance of doubt that consideration of the fit and proper test involves all elements of the Applicant's character and is not limited merely to criminal convictions or the findings of some regulatory or disciplinary inquiry.  By way of example, let us assume that an applicant broke into his divorcing spouse's house to remove disputed items of property.  There is a court judgment to that effect albeit no criminal charges were brought.  In our judgment, this and the circumstances around it would be material factors for the court to consider because they would go to an assessment of the applicant's honesty and integrity, albeit quite outside any professional disciplinary or regulatory investigation.  Similarly, there might be a judgment of the court in a civil case to the effect that the applicant has by fraud induced a contract with a third party.  We use those examples to demonstrate that merely relying on criminal, regulatory or disciplinary findings would be an unnecessarily restrictive construction of paragraph (c).  We should also add that the assessment of the relevant facts - the degree of opprobrium to be attached to a particular conviction or disciplinary finding or whatever other allegation of misconduct is asserted, will be a matter for the court at the relevant time.  It would be surprising, for example, if the court were to find that a speeding conviction disentitled an applicant, without more, from being admitted to the Jersey Bar.  All will depend on the facts and the Court's evaluation of them.

(ii)       The Law requires the court to be satisfied that an applicant is a fit and proper person to be admitted.  It follows that the view of the employer - whether it is the States of Jersey or the Attorney General - is of limited relevance.  In the present case, the disciplinary panel hearing chaired by the Viscount made a recommendation to the Attorney General as to how B should be sanctioned, and it appears the Attorney General has accepted that recommendation.  The fact that this was so is not relevant to the fit and proper test other than as possibly contributing to the Court's assessment of the character of the Applicant.  The importance of that conclusion can be demonstrated in this way.  Faced with the failure of the employee to disclose relevant material such as the Bar Standards Board investigation into his conduct, different employers might react in different ways.  Some might take the view that the job would never have been offered to the applicant in the first place if the disclosure had been made, and that in those circumstances, the employment could not possibly be maintained and the applicant should be dismissed.  At the other end of the spectrum, others might take an entirely relaxed view and accept that this was the way of the world, a view which we would not endorse, but nonetheless which might reflect the approach some employers might take.  In the middle ground, lies the approach taken by the Attorney - a sanction would be attached, but the employment would not be terminated.  In our judgment, the fit and proper person test is to be applied by the Court regardless of the different responses which an employer might make in the circumstances before him.  If in this case the Attorney General had decided that B would have to take his chances elsewhere, it seems to us that this would not inhibit the Court, if it thought fit, from assessing B to be a fit and proper person for admission to the Jersey Bar.  One must therefore be cautious about attributing too much weight to the views of the employer; although we recognise that the Attorney's responsibility for moving conclusions that the oath of office be administered does mean that the Court can attribute more weight to the Attorney's views than might otherwise be the case.

(iii)      In her advice to the States Assembly, the then Solicitor General did not mention either the reputation of the legal profession as a whole, or of the Court in relation to the administration of justice, as material factors.  It is important that the Court and the profession should not limit the approach to the fit and proper person test by disregarding these features.  In some cases, public disquiet and the confidence which the public generally have in the administration of justice would be substantially and adversely affected if the Court were to disregard an offence or particular conduct and admit an applicant to the Bar despite it.  A serious sexual assault against an adult, any sexual assault against children or a child pornography offence may all be examples of offences which fall into that category; and of course, there may be others of which murder or a dishonesty offence would be equally obvious examples.

(iv)      In considering whether a person is a fit and proper person to be admitted, it is right to note that this is a question to be determined objectively without having regard to the personal hardships which any particular applicant may put before the court.  The fitness of a person to be an advocate cannot depend on the consequences for him or her if the application is unsuccessful.  In his affidavit in this case, B says that if the Court's decision is not to admit him to the Jersey Bar, that will completely arrest the progress of his professional career and will terminate the potential for progression in a field where he feels he has a great deal to offer professionally and pastorally.  He therefore asks the Court "to weigh the error of my actions against the life changing gravity of that outcome".  With all respect to him, we do not think that is a matter for us.  Actions have outcomes.  It is often hard, but mistakes do have consequences.  We have not approached the present question of his fitness and propriety to be admitted by having regard to the personal consequences for the Applicant if he is not.

24.      In the present case, the Applicant has made it plain that while he privately does not accept that his conduct justified the findings of BTAS, he does accept the findings themselves.  Difficult as this must have been for him, we commend that approach and indeed we think it is right.  It does not appear to us to be appropriate to consider whether there is any fault in the disciplinary process in England and Wales to which B was subject, nor do we think it would be right to cast any doubt upon the findings of that disciplinary tribunal without full enquiry, which may not always be possible and is not possible in this case.  We accept them.  The Applicant therefore stands before us found guilty by that Tribunal, applying a criminal standard, of misconduct which would in fact have been a criminal offence had it been prosecuted.  We do not see that we can treat it in any other way, given that there is no uncertainty about the finding itself.  We do not of course have very much detail of the offence itself - it appears to have been something amounting to an indecent assault by touching over the clothing; and as to the seriousness of the offence it was not so serious as to justify B being disbarred, but it was sufficiently serious to justify a six month suspension.

25.      As to the failure to inform the Attorney General of the fact and progress of the Bar Standards Board's proceedings, we agree with all that has been said so far; this was a matter which could and should have been disclosed at an early stage, indeed, in the view of the majority of the court, prior to interview, and we have considered the explanations put forward by B against that finding of the Board.

26.      The two issues which we have to consider for the purposes of the representation are whether the Applicant's conduct either:

(i)        in what amounts to an indecent assault in 2016; and/or

(ii)       in failing to disclose the fact of the complaint, investigation and progress of the BATS hearing

constitutes material which should lead us to conclude that the Applicant is not a fit and proper person for admission to the Bar.  If the answer to either question is affirmative, then there is a subordinate question as to whether that conclusion is for all time or whether any lack of satisfaction as to fitness and propriety can be ameliorated by the passage of time, all other things being equal.

27.      As to the issue of the indecent assault, it seems to be obvious from the information which we have available to us that the circumstances place that assault at the lower end of the scale in so far as such assaults are concerned.  Of course, that does not mean that the incident should be disregarded, and there may be occasions where one or more cases of indecent assault would lead to a conclusion that the applicant was not a fit and proper person to be admitted.  However, in our judgment this case does not fall at that end of the scale and we think that the delay in gaining admission to the Jersey Bar, coupled with the sanction imposed by the States of Jersey in relation to the Applicant's employment is an adequate sanction in that respect.  Both from the nature of the offence and from the references which have been put before us, we are confident that the offence was out of character.  We have also noted that the Law Society has not focussed on the offence to any significant degree in its submissions, from which it is clear that it does not consider it is necessary to impose any further sanction in order to uphold the reputation and image of the profession in this respect.

28.      The question of a lack of honesty in failing to inform the Attorney General of the complaint made and the progress of its investigation and prosecution is in our judgment more serious.  Honesty is an absolute pre-requisite for any person to be admitted to the Bar as an advocate or enrolled as a solicitor.  As was said to the States in 2007, lawyers handle clients' money and receive clients' confidences.  Clients must be able to rely upon the honesty of their lawyer without any question.  In many cases, a finding of dishonesty will be quite sufficient to ensure that a person is never admitted to the Bar or enrolled as a solicitor.  Harsh as that may seem, in our judgment it is necessary to be absolutely clear on this fundamental point of principle.  Of course it is not just the reputation of the profession and the need to protect clients which drives this conclusion.  It is also the case that the court relies upon the lawyers appearing before it to act with propriety and truthfulness.  If the court cannot rely upon the word of the advocate who appears before it, the administration of justice becomes far more difficult. 

29.      In this context, we have found the submissions of the Law Society to be very helpful.  We accept the distinction which is drawn between dishonesty which can be explained as a momentary aberration and other forms of dishonesty which cannot.  This will be a question of evaluation of all the relevant evidence before the Court in any given case.  Of course, even a momentary aberration may be so serious that it cannot be disregarded; but we do not think this is the case here.  B was a barrister of established integrity who was faced with a complaint which he must have known was potentially career threatening.  His reaction to that was wrong.  In the cold light of day, he now realises that.  There has been no dissembling before this court in what he has done incorrectly.

30.      Having regard to all the evidence before us, we think we can and should draw from his conduct the conclusion that this failure to disclose the fact of the complaint, the investigation and the progress of the hearing does not go to such a material flaw in B's character which would make him unfit for admission to the Bar in Jersey.  In those circumstances, we do not think there is any need to apply a further sanction such as the Law Society suggests.  We do not feel we need a further six months for B to satisfy us that it was a momentary aberration and we think that we can be confident that it was therefore quite out of character.

31.      We therefore conclude that B is a fit and proper person to be admitted to the Jersey Bar.

Authorities

Advocates and Solicitors (Jersey) Law 1997. 

In re A [2012] (1) JLR 197. 

AG v Dunlop [2015] JRC 007. 

AG v Manning [2019] JRC 171. 

Money Laundering (Jersey) Order 2008

Bolton v Law Society [1994] 1 WLR 512. 

McCoan v General Medical Council [1964] 1 WLR 1107

In the matter of A [2012] JRC 043