| BARRISTER — Conduct of case — Practice — Person called to Bar falling within, and complying with, certain conditions of Code of Conduct of Bar of England and Wales but not possessing practising certificate — Provision by him of immigration services or immigration advice and services — Whether “qualified” to provide such advice or services — Immigration and Asylum Act 1999, ss 84, 86, 91
R v K [2008] EWCA Crim 1900; [2008] WLR (D) 294
CA: Toulson LJ, Andrew Smith J and Judge Rogers QC: 14 August 2008
A person called to the Bar who had not found a place in chambers but fell within para 206.1 of the Code of Conduct was not thereby “authorised” by the Bar Council to practise as a member of the profession whose members the Bar Council regulated for purposes of s 84 of the Immigration and Asylum Act 1999; accordingly he was apt to be prosecuted for providing immigration advice or immigration services contrary to ss 84 and 91 of the 1999 Act.
The Court of Appeal (Criminal Division) so held when dismissing K’s interlocutory appeal from the Crown Court judge’s ruling on a preliminary issue prior to K’s trial on charges of two offences of providing immigration services or immigration advice and services when not qualified to do so, contrary to s 91 of the 1999 Act.
The judge rejected K’s submission that, falling within para 206.1 of the Code of Conduct he was “qualified” to act and advise as he did for the purposes of s 84 of the 1999 Act. By s 91 of the Act it was an offence for a person to provide immigration advice or immigration services in contravention of s 84; s 86 set out a list of the “designated professional bodies” for the purposes of s 84.
The question was whether K was at the relevant time “authorised” by the Bar Council “to practise as a member of the profession whose members [it] regulates” and was therefore “a qualified person” (s 84(1) and (2)(b)).
K was called to the Bar in 1994 but was unable to obtain a place in chambers. He provided legal services for clients in various fields; he had appropriate professional indemnity insurance and had provided the requisite details of his activities to the Bar Council, also making his status clear to those with whom he dealt.
Para 201 provides, inter alia: “For the purposes of this Code: (a) a barrister practises as a barrister if he supplies legal services and in connection with the supply of such services: (i) he holds himself out or allows himself to be held out as a barrister; or (ii) he exercises a right which he has by reason of being a barrister...”; para 206.1 provides, inter alia: “A barrister called before 31 July 2000 who is deemed to be practising by virtue of para 201(a)(i) in England and Wales shall not be subject to the rules of this Code applying only to practising barristers...”
TOULSON LJ, giving the judgment of the court, said that K submitted that the effect of para 206.1 was to permit a barrister in his position to supply legal services to clients using the description of himself as a barrister (albeit a barrister without a practising certificate and not fully regulated by the Bar Council), and that he was therefore “authorised” to act as he did for the purposes of s 84. However, a person falling within para 206.1 was not thereby “authorised” by the Bar Council to practise as a member of the profession whose members the Bar Council regulated. All that paragraph did was to disapply the regulatory provisions of the Code in relation to such a person, and so exempt him from potential disciplinary action under the Code for providing legal advice without a practising certificate. There were many forms of legal advice which any person might give to others without breaking the law; and if, in providing legal services of a kind which anyone might lawfully provide to others, a person held himself out as a barrister, he did not breach the Code provided that he complied with para 206.1; but that did not put him in the category of a person who was authorised by the Code to practise as a member of the Bar and therefore “qualified” for the purposes of s 84. The relevant provisions of the 1999 Act were intended to ensure that those who provided immigration advice or services were subject to proper regulatory control, and K was not subject to such control by the Bar Council; it was the amenability to regulation referred to in the words of s 84(2)(b) “whose members the body regulates” which was important. It would not achieve the purpose of the 1999 Act if s 84(2)(b) were interpreted so as to include K. As to the Code, the purpose of para 206.1 was the more limited purpose of taking such a person outside the provisions of the Code; and it was difficult to see how a responsible body would wish to authorise a person to perform services for which being a practising barrister provided legal eligibility while at the same time abdicating any regulatory control over the performance of such services. Accordingly the judge’s ruling was correct. However, although K was not qualified to provide immigration advice or services his bona fides had not been questioned and the court emphasised that it saw no public purpose in continuing the criminal proceedings against him.
The court imposed reporting restrictions.
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