WHEN AN APPEAL MISSES THE POINT: APPELLANT FAILED TO IDENTIFY THE ISSUES ON APPEAL

There are some surprising observations in the judgment in The Bar Standards Board (BSB) v Crawford [2017] EWHC 3101 (Admin).  Not the least that the appellant’s documents did not deal with central issues in the appeal.

“The grounds of appeal in this case singularly failed to identify the issues that were said to arise, and to which argument would be directed”

“Regrettably, neither the grounds of appeal nor the skeleton argument properly identified the issues which this court was being asked to consider and determine.”

THE CASE

The Bar Standards Board was arguing that a Disciplinary Tribunal decision had been too lenient.   The appeal was dismissed

THE JUDGMENT ON THE APPEAL

“The Appeal

    1. Mr Clarke initially submitted that the question posed in this appeal – one of the first appeals to this court by the BSB under its new powers to appeal against a sanction imposed by a Disciplinary Tribunal – is as follows (see paragraph 10 of his skeleton argument):

“What is the proper sanction for a barrister who repeatedly breaches an order of the criminal court and in so doing acquires three convictions for seven separate offences over a period of seven years, with sentences of unpaid work and imprisonment being thereby imposed, the latter conviction being committed after a previous Disciplinary Tribunal sanction, imposed in respect of an earlier conviction?”

Leaving aside the limited scope of the available grounds of appeal, in my view that question is patently too broad; because the appropriateness of a sanction is necessarily fact-specific. In paragraph 23 of that same skeleton argument, drawing on the observations of Jackson LJ in Salsbury v The Law Society [2008] EWCA Civ 1285[2009] 1 WLR 1286 at [30] and, more recently, Beatson LJ in Ballard v Solicitors Regulation Authority[2017] EWHC 164 (Admin) at [66], Mr Clarke puts the question for this court in this way:

“On the facts of this case, was the decision of the tribunal ‘clearly inappropriate’?”

That, at least, focuses upon the facts of this specific case, which any exercise involving sanction must do.

    1. Regrettably, neither the grounds of appeal nor the skeleton argument properly identified the issues which this court was being asked to consider and determine.

    2. The grounds of appeal failed to comply with the requirements of CPR Part 52, which applies to appeals such as this. In Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493 at [12], the Vice-President of the Court of Appeal (Civil Division), Moore-Bick LJ, said this:

“Grounds of appeal are intended to be short, succinct documents which identify as briefly as possible the respects in which it is said that the court below… erred. If drafted as the rules intend and require, they provide the court and the parties with a clear and concise statement of the issues that will arise on the appeal and to which argument will be directed.”

The grounds of appeal in this case singularly failed to identify the issues that were said to arise, and to which argument would be directed. However, that failure was compounded by their failure properly to engage with the grounds of appeal available under paragraph rE185 of the 2014 Rules, which must be the starting point for any appeal by the BSB.

IN CONCLUSION

The judgment concluded:-

    1. We appreciate that few appeals have been made under the new COIC regime, and certainly this is one of the first appeals by the BSB against a sanction. However, in our view, this appeal was not optimally prepared or presented by the BSB; and we consider we can make some observations arising out of this appeal that may assist future appeals by the BSB.

    2. A real difficulty faced by the court in this case was the absence of any particulars explaining why the BSB considered that the tribunal had erred. Such particulars appeared in neither the grounds of appeal, nor the BSB skeleton argument. In future, in any appeal by the BSB the court will expect to see, set out in the grounds of appeal and properly elaborated upon in the skeleton, proper identification of the specific findings of fact, statements of law or principle made by the Tribunal, or other errors of law which the BSB criticises and to which it objects, with proper reference to the available grounds of appeal as set out in regulation rE185.

    3. That identification must be done with an appropriate amount of care and precision. As I have indicated, in this case, the BSB argued that the tribunal’s conclusion that it was unlikely that the Respondent’s past misconduct would be repeated was perverse. However, that was not set out in the grounds of appeal, or in the skeleton. It was first raised during the appeal hearing. Neither the Respondent (who had a right to prior notice of the case against him) nor the Court was given any notice of the factual or other basis upon which this submission was made. The tribunal had held that the risk in the future was much lower since the children were now older and, in effect, the occasions when mother and father would have to be in contact had consequently dramatically diminished. On the face of it, that was uncontroversial. If the BSB wished to challenge that finding, it was incumbent it to explain how, and why, and upon what evidential basis.

    4. Furthermore, where it is contended by the BSB on appeal that the sanction fell within regulation rE185(d) (i.e. it was legally perverse), the court will also expect proper assistance on the range of sanction which, the BSB contend, would have been appropriate and lawful. In this case, nowhere in the grounds nor skeleton was there any identification of the sanction that the BSB considered was appropriate. In the course of argument, Mr Clarke submitted that the only rational sanction in a case such as the present was permanent disbarment. However, on reflection and upon taking instructions, he accepted that a “very lengthy” suspension might be appropriate. Neither proposition was advanced until the BSB was compelled to respond to questions from the court towards the end of oral submissions; and it follows that the Respondent was given no forewarning of the stance being taken. In the event, Mr Speaight was more than able to respond to the submission eventually made, fully, forcefully and effectively. However, in a challenge to sanction, it is incumbent upon the BSB to identify, in advance, what it contends is the appropriate range of sanction, and to provide the court with relevant background material (e.g. appropriate references from the Sentencing Guidance, and any relevant precedents).

    5. These observations are intended to assist in future BSB appeals. Clarity in the BSB’s case is important, not just to assist the Court, but, crucially, to enable the Respondent, whose sanction the BSB is seeking to increase, to know the case he is facing and to have a fair opportunity to respond to it.”