Garnham v Bar Standards Board [2017] EWHC 1139 (Admin)

Case No CO/4843/2016[2017] EWHC 1139 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 21 March 2017
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MOSTYN
- - - - - - - - - - - - - - - - - - - - -Between:
GARNHAM
Appellant
v
BAR STANDARDS BOARD
Respondent
- - - - - - - - - - - - - - - - - - - - -Computer-Aided Transcript of the Stenograph Notes of
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Mr P Engelman (instructed by Direct Access) appeared on behalf of the Appellant
Mr S Mooney (instructed by Bar Standards Board) appeared on behalf of the Respondent
Between
GarnhamClaimantBar Standards BoardDefendant
[1]MR JUSTICE MOSTYN: In September 2011 Jeremy Garnham was a student barrister. He was renting a room as a lodger in a house in Essendon, Hertfordshire. The occupant of the house was a Ms D Penney. Mr Garnham has told me that Ms Penney was renting it from its owner who was living in Hong Kong. Mr Garnham decided to apply for housing benefit. He needed to produce a document to the local authority known as a "lodger's licence" in order to make his claim. No one has suggested to me that Mr Garnham was not lawfully entitled to claim housing benefit.[2]On 2 September 2011 Mr Garnham duly obtained housing benefit after producing a lodger's licence which named Ms Penney as the licensor and Mr Garnham as the licensee. The document was, I assume, signed by both Ms Penney and Mr Garnham. The original has not been located and is believed to have been destroyed. It was, however, a defective document because the only valid licensor could have been the owner of the property. Mr Garnham knew that the document was wrong. He should have gone to the trouble of getting the owner in Hong Kong to complete the document and sign it. However, in terms of moral culpability, the delinquency of Mr Garnham seems very modest indeed.[3]Mr Garnham did the same thing on 27 January 2012. Another lodger's licence naming Ms Penney as the licensor and signed by her was produced to the local authority.[4]All this happened before Mr Garnham was called to the Bar. That took place in the Middle Temple on 22 November 2012. This is of some importance, as I will explain later.[5]The local authority, Welwyn Hatfield Borough Council, worked out that the licence was defective. They prosecuted Mr Garnham under section 112 of the Social Security Administration Act 1992. That section is entitled "False representations for obtaining benefit etc". It provides that:
"If a person for the purpose of obtaining any benefit... (a) makes a statement or representation which he knows to be false; or (b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular, He shall be guilty of an offence."
[6]It can be seen that the offence plainly incorporates a mental element or what the lawyers call mens rea. That mental element is knowing falsehood.[7]Obviously, if you make a statement which you know to be false or if you produce a document which you know to be false, then you are being literally dishonest. Mr Engelman argues that it is possible knowingly to make an inaccurate statement whilst at the same time not acting dishonestly. That may be true in a legal sense, but it is not true in a literal sense. In contrast, Mr Mooney argues that every time someone is convicted of an offence under section 112 then that will involve dishonesty for the purposes of the Code of Conduct for the Bar. I do not accept that argument.[8]Parliament plainly did not think that section 112 carried with it by implication the expression of dishonesty for in 1997 Parliament amended the 1992 Act to insert section 111A. This is entitled "Dishonest representations for obtaining benefit etc" and it provides that:
"If a person dishonestly - (a) makes a false statement or representation (b) produces or furnishes, or causes or allows to be produced or furnished, any document or information which is false in a material particular; With the view to obtaining any benefit... He shall be guilty of an offence."
[9]There is much force in Mr Engelman's argument that Parliament must have considered that section 112 did not incorporate an expression of dishonesty for if it did, then the amendment would have been entirely unnecessary. I note that if you are charged under section 111A, then you can be tried on indictment and receive, if found guilty, a very severe sentence. However, in contrast, if you are charged under section 112, you can only be tried summarily and the sentencing powers are circumscribed. Plainly Parliament did not consider that section 112 was dealing with explicit cases of dishonesty.[10]The local authority prosecuted Mr Garnham under section 112. The first charge stated that he had made a false statement, namely that Ms Penney was his landlord. This charge was, in fact, dropped and no evidence was offered. The second and third charges alleged that on the dates I have mentioned above (2 September 2011 and 27 January 2012) Mr Garnham had knowingly provided a false document, namely a lodger's licence which named Ms Penney as licensor when she was not empowered to grant such a licence. Mr Garnham pleaded guilty to both charges. He was fined £475 on each count and ordered to pay £1,900 in costs.[11]Mr Mooney argues that this was an objectively heavy sentence and it must have reflected the court's view that Mr Garnham's moral culpability was serious. Unfortunately, we have no information about this. There are no sentencing remarks available. For all we know, the sentence might have been in accordance with mandatory guidelines. Alternatively, it may have been intended to supply a condign deterrent in relation to benefit fraud generally.[12]In June 2015 the existence of these convictions came to the attention of the Bar Standards Board. They wrote to the Appellant asking for an explanation. On 25 June 2015 he replied:
"The details of the offence were that my landlady was not the owner of the property and she provided me a lodger's licence which apparently she should not have provided. This was provided twice, hence the two charges. Therefore, as this was a strict liability charge with no dishonesty element to the crime, I pleaded guilty. This combined with the health issues I was suffering was the reason for the guilty plea."
In relation to the charges that he faced before the Bar Tribunal, that was more or less the beginning and end of the Appellant's explanation.[13]The documentation obtained by the Bar Standards Board from Mr Wright, the benefits manager at the local authority, revealed that the local authority had, in fact, disallowed the housing benefit and that Mr Garnham had appealed to the First-tier Tribunal, but that on 5 September 2014 his appeal was dismissed, his evidence being rejected as improbable and unpersuasive. It is difficult to know what to make of this in the context of the proceedings that were brought against him by the Bar Standards Board.[14]On 18 August 2015 Mr Wright informed the Bar Standards Board that Mr Garnham had been subjected to an investigation for fraudulently claiming housing benefit. He wrote:
"He claimed housing benefit for a room in his sister's house and did not declare the relationship with his "landlord"
. His housing benefit was, therefore, cancelled retrospectively and an overpayment created... An appeal was made, but the decision ruled in the Council's favour. Mr Garnham was subject to prosecution for the fraud and his sister, who had represented herself as a legitimate landlord, was cautioned."[15]This was almost entirely incorrect. Mr Garnham does not have a sister. Ms Penney was not his sister. As a result of this being pointed out to Mr Wright, on 11 March 2016, he, Mr Wright, withdrew all the allegations, accepting that Mr Garnham did not have a sister and that the information he had provided was inaccurate due to a problem with some case records. He said in his e-mail to the Bar Standards Board:
"In the circumstances, I have no wish to offer any further defence (sic) regarding the case."
[16]The Bar Standards Board duly charged the Appellant with two offences in December 2015. These read as follows:
"Charge 1: professional misconduct. The Appellant engaged in conduct which was likely to diminish the trust and confidence which the public places in him as a barrister or in the barrister's profession in that on 24 September 2014 he was convicted on two counts of providing a lodger's licence which he knew to be false in a material respect contrary to section 112 and ordered to pay costs."
[17]Pausing there, it is interesting that the misconduct which is alleged against the Appellant is his conviction when surely the misconduct in question is not his conviction but the conduct which resulted in his conviction. Turning up at court and pleading guilty to an offence is not of itself misconduct. This is a statement of the obvious. The reason I mention this is that the conduct in question, as I have already stated, took place before Mr Garnham had been called to the Bar and before the Bar Standards Board had any jurisdiction over him.[18]The second charge again alleged professional misconduct and stated in its particulars that:
"The Appellant failed to cooperate with the regulator by failing to report his conviction to the Bar Standards Board promptly or at all."
[19]The Appellant barely engaged in the proceedings. He did not comply with the directions. He did not file a witness statement. He did send in some desultory e-mails over and above the ones which I have mentioned. In relation to the second charge, his explanation, expressed in an e-mail, was that he did not report himself to the Bar Standards Board because he had been given advice by the ethics hotline of the Bar Council that he did not need to do so.[20]However, he did not attend the hearing, which was fixed before a five member panel on 2 September 2016. In circumstances where he was not, so to speak, prepared to come and climb into the witness box and be cross-examined on his various defences, it might be thought that he had made his bed and so he must lie in it. However, a Tribunal such as this is administering the rule of law and it must not allow feelings of affront to influence its decision making processes.[21]I have read the transcript of the proceedings that took place before the panel. The panel decided to proceed in the absence of Mr Garnham. It reminded itself of the relevant authorities, specifically R v Jones, that govern such a decision. In circumstances where disbarment was plainly an option were charge 1 to be proved, it appears to me to be a hard decision that the panel made to proceed without giving Mr Garnham a final opportunity to defend himself. This much I think is accepted by Mr Mooney.[22]What is not apparent to me from looking at the transcript is whether the allegation that Mr Garnham had falsely represented that his landlord was in truth his sister, which had been withdrawn, was in fact explained to the panel. It certainly was not done so orally, but I am told that the documents were before the panel. I must assume that they were read by all its members and so that that unfortunate chaotic factual aspect I must assume was in the panel's mind.[23]The colloquy between counsel, Mr Mooney, and the panel makes interesting reading. It is clear that the chairman was of the view that if you are convicted under section 112 then you are ex hypothesi guilty of dishonesty. That much is clear from page 11 of the transcript where the chairman, Judge Matthews QC, contrasts section 111, which explicitly refers to dishonesty, with section 112. She says this:
"Section 112 is knowingly making a false representation. That brings the mens rea in at a later stage because a false representation you have to know it is false to be made. That has a different kind of element of dishonesty to it. It seems to me to be quite straightforward."
[24]That statement seems to me to express a view that there is inevitably in every section 112 conviction an element of dishonesty. As I have said earlier, that may be true in a literal sense, but I do not believe it to be true in a legal sense because otherwise Parliament has passed an entirely otiose amendment to the Act in question.[25]Having decided to proceed in the absence of Mr Garnham, the panel went on to ask various questions and then withdrew to render its decision. Its decision is to be found in two written documents which are extremely spare in their reasoning. In the primary document in relation to charge 1, the Tribunal said this:
"The Tribunal found the charge proven. The Tribunal was satisfied to the criminal standard. The Defendant had pleaded guilty to the two offences in question. The Tribunal concluded that these were not minor matters as they clearly involved an element of dishonesty in knowingly providing fraudulent documents to obtain housing benefit. For further reasons, please see the annexed note."
The annexed note says this:
"Charge 1 proved. Find conviction proved. Accept memorandum of entry in register dated 24 September 2014. Defendant pleaded guilty to two separately dated offences of making a false representation to obtain housing benefit. Tribunal concluded these were not minor matters as the offences were for the purpose of obtaining housing benefit by producing a document or information which Defendant knew to be false as to his relationship with D Penney, which clearly involves dishonesty."
[26]In the absence of the Defendant, I suppose it could be argued that he could not really complain if the worst possible construction is put on the documents that were laid before the Tribunal. However, I have to say that I just do not understand the reasoning that is expressed in this supplementary note. I have asked what does "the Defendant knew to be false as to his relationship with D Penney" mean? What am I supposed to read into these words? What has the Tribunal found about his relationship with D Penney? Did the Tribunal find that he was, in fact, in some kind of intimate relationship with her or is it merely saying that he misrepresented D Penney as owner when, in fact, she was a tenant of the property? It is entirely obscure what the Tribunal meant in its finding on this important matter.[27]The final phrase of this document fixes the Defendant with an act of dishonesty. Of course, where dishonesty is found in disciplinary proceedings against a barrister, disbarment almost inevitably follows. I do not accept that every offence under section 112 involves dishonesty as it is understood in disciplinary proceedings involving barristers. There can be many circumstances which I can contemplate in which an offence could be committed under section 112 which would not involve the stigmatic affixing of a finding of dishonesty.[28]As I have said, in this case, in circumstances where it seems to be agreed or at least it is not disputed that Mr Garnham was entitled to housing benefit anyway, it is hardly dishonest if he puts the wrong person's name down as licensor. I do not accept the argument, which seems to have originated from the chairman of the panel and which has been accepted in argument by Mr Mooney, that every offence under section 112 involves dishonesty and with it the likelihood of disbarment. In any event, I am not satisfied at all that the reasoning of the panel in relation to this serious matter is at all satisfactory.[29]Further, what has not been considered at all by the panel in determining charge 1 is the fact that the underlying matters in respect of which complaint is made all occurred before Mr Garnham was called to the Bar and when the Bar Standards Board had no jurisdiction over him whatsoever. I cannot accept that if you are convicted of matters which occurred before you were called to the Bar that that the conviction per se can constitute professional misconduct, but I do not need to go that far for the purposes of my decision today.[30]Mr Mooney accepts that in circumstances where the conduct in question predated his call to the Bar, I have to judge the appeal in relation to charge 1 in the way that is most favourable to the Appellant.[31]The inadequacy of the reasoning, the failure to make the decision in any way evidence based, coupled with the fact that the conduct in question predated his call to the Bar all lead me to conclude that the appeal in relation to charge 1 must be allowed. The appeal in relation to conviction is allowed. It follows, therefore, that the sentence of disbarment is set aside.[32]In relation to charge 2, here the Defendant has certainly made his bed and he must lie in it. But I accept nonetheless that no amount of advice from a helpline can exculpate a barrister from the obligation to report himself to his regulator where he is convicted of an offence which I repeat is entitled "false representations for obtaining benefit". If you are convicted of an offence of that nature, then you have a non-delegable and inescapable duty to report yourself to the regulator, whatever anybody may advise you otherwise.[33]The appeal in relation to charge 2 is dismissed.

MR JUSTICE MOSTYN: That means, Mr Garnham, you have to pay the fine.

[35]MR ENGELMAN: My Lord, in those circumstances, there appears to be no question of a remission.

MR JUSTICE MOSTYN: No.

[37]MR ENGELMAN: I would be grateful if your Lordship would direct that the BSB remove all references to dishonesty on its website.

MR JUSTICE MOSTYN: Yes, that will happen.

[39]MR ENGELMAN: My Lord, my other application is for costs.

MR JUSTICE MOSTYN: Well, you have sort of won on one and lost on another.

[41]MR ENGELMAN: Well --

MR JUSTICE MOSTYN: You have won on the big one.

[43]MR ENGELMAN: That should be reflected. I invite your Lordship to say 75 per cent of the Appellant's costs.

MR JUSTICE MOSTYN: What do you say; to be assessed?

[45]MR MOONEY: I need to be assessed, yes.

MR JUSTICE MOSTYN: I do not think you can argue against that.

[47]MR MOONEY: Not in the circumstances, no.

MR JUSTICE MOSTYN: That will be the order then.

[49]Can I thank you both for your excellent documents. Yours was perhaps longer, but yours was very pithy. Thank you.

Cited in 1 later judgment