A mature Bar student has lost a judicial review against the Bar Standards Board (BSB) after a two-time failure to pass a single module on opinion writing meant he in turn failed the Bar Professional Training Course (BPTC) and would have to take entire course again before moving onto pupillage.
Mr Justice Hickinbottom ruled that Steven Prescott had fallen “very far short of persuading me that the Bar Council [in effect, the BSB] has acted in any way unlawfully” in refusing to exercise its discretion to let him retake just that one module again.
BSB rules provided that where an assessment had been failed twice, then – absent extenuating circumstances or a ‘near miss’ that could allow for a further re-sit, neither of which were relevant here – “the candidate shall be recorded as having failed the course”.
Mr Prescott had various jobs before trying to qualify as a barrister – such as teacher, minister of religion and construction project manager – and had successfully completed a two-year fast-track law degree at Staffordshire Law College before starting the BPTC at the University of Law in Birmingham in September 2012.
The 48-year-old told the court that he had foreseen difficulties with the opinion writing module, in particular the requirement to “research [a] legal area and for us to necessarily conclude what the law is before responding to the professional client in constrained time conditions and without being able to talk to our peers or lecturers”.
The following summer Mr Prescott scored competent or very competent grades in all subjects but four –advocacy 2, civil litigation, criminal litigation and opinion writing. He re-sat them in November 2013, and achieved the pass mark of 60% in the first three, but only managed 46% for opinion writing. As a result he failed the BPTC as a whole.
In his judicial review he argued that he had shown competence in opinion writing during his personal injury option, that the BSB should have exercised its discretion to allow him to retake just the opinion writing module, and that requiring him to retake the entire BPTC was disproportionate and breached his right to a private life under article 8 of the European Convention on Human Rights.
However, Mr Justice Hickinbottom firmly rejected the arguments, saying that setting standards, and how they might be met, “is quintessentially a matter for the BSB – and not this court”.
The opinion written in the personal injury module, he noted, was completed over a week, “with the benefit of various facilities: the part of the option writing assessment which the claimant failed was time-constrained and unseen, thereby testing different skills and attributes”.
In relation to the exercise of discretion, case law showed that there was no such discretion, the judge said. “The regulator is entitled to require specific examination passes from all applicants, and thus must be entitled to require such passes from all applicants save for those it has decided, on legitimate grounds, to exempt or except.”
Article 8 was not engaged, he continued: respect for private life “does not arise in the context of the setting of requirements as to competence for entry into (and continuance in) a particular profession”.
Hickinbottom J added: “The principle of proportionality requires a greater degree of scrutiny of the relevant decision and the consequences to individuals compared with the aim; but, in this case, the BSB have determined that, without passing the BPTC at two sittings, a candidate does not evidence competence to allow him to proceed to pupillage.
“The fact that the claimant may find it difficult to proceed (because of the need to pay a second BPTC fee), or considers that he only just failed… or considers he has a calling to be a member of the Bar, or is of mixed race, or has a disabled partner (all of which [Mr Prescott’s counsel] prayed in aid) may be important – possibly, vitally important – in other contexts; but they can have little if any weight in the proportionality balance here…
“The requirement that all assessments be passed with time and opportunity constraints is intended generally to protect the public, in pursuit of the obligation on the Bar Council, derived from the 2007 [Legal Services] Act, so to do.
“The public interest in the legitimate aim of promoting and maintaining professional principles and standards, including the maintenance of proper standards of work by those who work in the profession, simply overwhelms any possible infraction of the claimant’s article 8 rights.”