Counsel—Professional conduct—Non-practising barrister

Court of Appeal, Criminal Division, Toulson LJ, Andrew Smith J and Judge Rogers QC, 14 August 2008

A non-practising barrister who falls within para 206.1 of the Code of Conduct of the Bar of England and Wales 8th edition is not qualified to provide immigration advice or immigration services for the purposes of s 84 of the Immigration and Asylum Act 1999.

David Gottlieb (assigned by the registrar of Criminal Appeals) for the defendant. Peter Ratliff (instructed by the Crown Prosecution Service) for the Crown.

The Immigration and Asylum Act 1999 (IAA 1999) was passed in part because the government had become concerned that a market had developed in the provision of immigration advice and service by people who were not only unqualified but also sometimes unscrupulous. The purpose of the relevant part of IAA 1999 was to ensure that any person wishing to provide immigration advice or services had either to be registered with the immigration services commissioner (who had statutory power under IAA 1999 to regulate the activities of persons so registered) or be a person subject to the regulatory control of one of the designated professional bodies.

The defendant had been called to the Bar but had not been able to obtain a place in chambers. Accordingly, he had no practice certificate. He subsequently provided legal services for clients in a variety of areas including immigration. He had always been scrupulous to keep within the law and had carried appropriate professional indemnity insurance. He provided the requisite details of his activities to the Bar Council and had made his status clear to those with whom he dealt.

He was charged with two offences of providing immigration services or immigration advice, when not qualified to do so, contrary to IAA 1999, s 91. The defendant’s case was that he fell within the provisions of para 206.1 of the Code of Conduct of the Bar of England and Wales (the code) and was therefore qualified to provide immigration advice or immigration services for the purposes of IAA 1999, s 84. It was common ground that the defendant had provided immigration advice and services on the occasions in question. A preliminary issue was heard as to whether or not, at the relevant time, the defendant had been authorised by the Bar Council to “practise as a member of the profession whose members [it] regulates”. The judge ruled against the defendant and he appealed.

Lord Justice Toulson (giving the judgment of the court):
The issue was whether or not a person who fell within and had complied with the conditions set out in para 206.1 of the code was qualified to provide immigration advice or immigration services for the purposes of IAA 1999, s 84.

Paragraph 206.1 provided: “A barrister called before 31 July 2000 who is deemed to be practising by virtue of paragraph 201(a)(i) in England and Wales shall not be subject to the rules in this Code applying only to practising barrister provided that: (a) if he supplies any legal services to any person: (i) He provides in writing to the Bar Council details of the current address(es) with telephone number(s) of the office or premises from which he does so. (ii)…he… is currently insured by insurers authorised to conduct such business…(b) Before supplying legal services to any person…he informs them fully and comprehensively in writing (a) of his status…”

The opening words of para 206.1 were not happily drafted. The phrase “the rules in this code applying only to practising barristers” was puzzling when the term “practising barristers” was defined to include all those practising as a barrister either de facto or de jure or both. But the rules which were disapplied in relation to barristers falling within para 206.1 were important rules governing the behaviour of practising barristers, for example, the fundamental principles set out in Pt III (concerning a barrister’s integrity, independence and duties to the court and his client) and the further rules about the conduct of work by practising solicitors set out in Pt VII (including a barrister’s duty to have regard to any relevant written standards for the conduct of professional work issued by the Bar Council).

“Authorised”
His lordship accepted the prosecution’s argument that 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.

It was plain that the relevant provisions of IAA 1999 were intended to ensure that those who provided immigration advice or services were subject to proper regulatory control. The defendant was not subject to the regulatory control of the Bar Council. Important provisions of the code, such as those contained in Pts III and VII, did not apply to him. It was noteworthy that s 84(2)(b) did not stop with the words “authorised by a designated professional body to practise as a members of the profession” but added “whose members the body regulates”. It was the amenability to regulation which was important. A person in the defendant’s position was not regulated by the Bar Council. It would therefore not achieve the purpose of IAA 1999 if s 84 (2)(b) were interpreted so as to include the defendant. 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. It was difficult to see how a responsible professional 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. The appeal would therefore be dismissed.