Fordham: Bigger picture at play
The High Court has denied rights of audience to Michael Shrimpton, a disbarred barrister jailed for a bomb hoax at the London Olympics, which would have allowed him to represent a prisoner in habeas corpus proceedings.
Mr Justice Fordham warned that if the courts were to “embrace granting ad hoc advocacy rights” to disbarred barristers or struck-off solicitors, it would create “a real and substantial risk of a systemic bypass of the regulatory regime”.
He said: “The consequence would be that a disbarred barrister or suspended/struck-off solicitor advocate would, in effect, be able to operate (by offering lower rates), without regulatory underpinning, and without insurance, by pointing to the constituency of litigants who can be assisted in that way.”
Both the Bar Standards Board (BSB) and the Law Society made representations on the principles involved but they took a neutral position on whether the court should exercise its discretion to grant rights of audience in this case.
Mr Shrimpton was suspended from practising as a barrister in December 2014, after his conviction for communicating false information at Southwark Crown Court. He was reported to have called the former defence secretary in 2012, claiming to have intelligence about a terrorist bomb attack at the London Olympics. Unrelated convictions from earlier that year were also taken into account.
Mr Shrimpton was disbarred in September 2018 and appealed unsuccessfully to the High Court. He was banned for working for law firms by the Solicitors Regulation Authority the following year. The Solicitors Disciplinary Tribunal rejected his appeal against this decision in 2020.
The High Court heard in Malik v Governor of HM Prison Hindley (no.2) [2022] EWHC 2684 (Admin) that Rehan Malik was applying as litigant in person for Mr Shrimpton to be granted rights of audience under Schedule 3.1(2)(b) of the Legal Services Act 2007 to assist him in habeas corpus proceedings and an application for bail.
Fordham J said: “He cannot be expected to present the substantive applications for habeas corpus, or bail, himself. He is, moreover, in custody and appears at hearings on a video link.
“It is not practicable for him even to have a McKenzie Friend sitting next to him in the prison, to give him support and assistance.” For these reasons, conferring rights of audience would “greatly assist” the court.
The judge said Mr Shrimpton first advised Mr Malik in relation to habeas corpus as a ‘legal consultant’ in October 2021 and had since drafted various versions of grounds in support as well as twice appearing at directions hearings.
Fordham J said the former barrister – who he noted had not been disciplined for his legal work and whose criminal convictions were spent – presented the assistance he provided as a “positive contribution to the legal system and to litigation in the courts” in the context of “unavailable legal aid and unaffordable legal fees”.
The judge noted that granting rights would be seen as an endorsement of this, continuing: “He says that for a ‘fraction’ (whatever that ‘fraction’ is) of the rates that would be charged by a barrister in independent private practice, he is able to advise, and help with research and drafting, and then ultimately appear by asking for ad hoc permission from the courts, in proceedings and for hearings which come before them.
“His system is that of putative advocate. This is a system. It seems to me to call for a systemic answer. It raises issues of principle for consideration at a policy level. The existence of a ‘bigger picture’ is unmistakeable.”
Fordham J said that he had not, “in any event”, been persuaded that a decision not to confer rights of audience on Mr Shrimpton would leave Mr Malik without the ability to secure an advocate, in particular a junior barrister or solicitor-advocate.
The judge said: “There is no getting away from it. If the courts are to embrace granting ‘ad hoc’ advocacy rights to an individual who has been disbarred as a barrister (or suspended or struck off as a solicitor advocate), there is a real and substantial risk of a systemic bypass of the regulatory regime and the regulatory protections emphasised in the authorities.”
He said the interests of justice and the wider public interest did not support the grant of rights of audience in this case. “On the contrary, the balance comes down decisively against doing so.”
Why should a barrister submit false information about a bomb? It makes no sense.