The British-based Privy Council on Monday delivered a 4-1 decision against former Lieutenant-Colonel Ewart “Headache” Layne in his attempt to get admitted to practice law in the local courts.
The single judge who ruled in favour of Layne was LORD KERR who did not agree with the reasoning of the other four Law Lords that the trial judge was right in reaching the decision that the ex-soldier should not be admitted as a lawyer solely on the basis of his convictions for mass murders in October 1983.
The setback has brought an almost immediate reaction from Layne who signaled his intention to consider his options in the upcoming weeks.
In a brief statement issued, the ex-army chief said: “The Privy Council in a majority 4-1 decision (in which four separate opinions were delivered) has ruled against my appeal. As has been the case from the start of the struggle to be admitted, the sticking point was the convictions from the Kangaroo trial.
“The validity of those convictions was not an issue to be determined in the present case and the court proceeded on the assumption that they were valid. The outcome is disappointing but it’s not the end of the world; it’s far from the worst I have experienced; and it’s not the end of the struggle. Over the next few days and weeks I will make a decision as to the way forward. Thank you for your support and solidarity”.
As a public service, THE NEW TODAY reproduces the opinion of the dissenting judge Lord Kerr who wanted the matter to be sent back to the local high court:
I regret that I cannot share the opinion of the majority of the Board as to the disposal of this appeal.
The proper approach to section 17(1) (a)
Section 17(1)(a) of the Legal Profession Act 2011 requires (insofar as is relevant to this appeal) that an applicant for admission to practice at the Bar of Grenada be of good character in order to be eligible. A decision as to whether someone is of good character partakes of factual inquiry and the application of judgment. It does not involve the exercise of discretion.
If I am asked whether someone is of good character, I must examine what I know of the individual concerned and then decide whether, in my estimation, his character is good. That does not involve a consideration of various possible answers to the question and the selection of one of those possibilities, having weighed up the competing arguments in favour of or against each.
Such consideration is of the essence when a discretion is being exercised. But it is not what requires to be undertaken here. In the mind of the decider, a person is of good character or he is not. That is a matter of judgment.
The second thing to be said about section 17(1)(a) is that it requires the judgment as to whether an applicant is of good character to be made at the time of the application for admission to the Bar. Of course, the behaviour of an applicant in the past may be relevant to the contemporaneous assessment but only insofar as it relates to his or her current standing.
Reprehensible conduct in the past by a candidate for admission may provide an indicator as to her or his present character but it must not be allowed to operate as an automatic bar. In other words, simply because an individual has behaved badly in the past does not constitute an inevitable block on their admission to practice.
Previous past conduct is material only to the extent that it bears on the evaluation of character made at the time of consideration of the application. And, however bad or shameful the past behaviour, the decision-maker must not approach his or her assessment on the basis that its effect can never be outweighed by the subsequent redemptive conduct of the applicant.
Egregious behaviour in the past may present an applicant with a formidable hurdle; it should never be regarded as an automatically insuperable one.
In this case, Price Findlay J, in para 27 of her judgment said, “While rehabilitation is important, a show of rehabilitation in the face of past serious misconduct may be impossible to make.” It is not entirely clear what is meant by that statement, but, insofar as it was intended to convey that there were some cases where the offences were so grave that no measure of rehabilitation and reform could ever outweigh their effect, I would not agree with it.
The third and final observation to be made about section 17(1)(a) is that it is the Supreme Court which must make the judgment as to whether it is satisfied that the applicant is of good character.
This is not a judgment that can be subordinated to notions of how admission to the Bar of a particular individual might be viewed by sections of
society or even by the community at large.
It is the court which is charged with the solemn duty of deciding whether the candidate is of good character. That task is personal to the court. A belief that the admission of an applicant might be regarded askance by others is irrelevant, unless it affects the court’s own judgment as to whether the applicant is of good character.
I accept, of course, that what constitutes good character can vary according to the context in which the assessment is made. Someone aspiring to be a lawyer must be able to command the respect and confidence of the community which he or she serves. In other professions or occupations, this may not rank especially highly, particularly if the position applied for does not involve extensive contact with the public.
But the judgment as to whether an individual has the capacity to inspire the confidence and respect which a lawyer must have, is one which the decision-maker (in this instance the Supreme Court) must make for itself. If the court decides that, in its estimation, the applicant is possessed of those qualities, it may not deem the applicant ineligible because it considers that members of the public might think otherwise.
This is particularly important because the court should be possessed of all the material relevant to, for instance, the applicant’s rehabilitation, and the efforts which he has made to overcome and compensate for the circumstances in his past which have led to apprehension as to his moral competence and probity.
The court should also have full access to pertinent information about the applicant’s current standing. This material may not be available to members of the public; may not have been scrutinised with the critical eye with which the court examines it; and may not, in any event, be assessed with the cool, dispassionate authority that the court must bring to bear upon it.
While, therefore, the court must assess whether an applicant has the necessary qualities of uprightness, honesty, integrity and probity, it is the court’s own judgment on these matters which counts, not some speculation as to how those qualities might be judged by others.
It is important, therefore, that the court recognises (i) that this is a matter for its judgment, rather than the exercise of its discretion; and (ii) that the judgment should be made as an objective exercise, involving its own assessment of whether the qualities of moral character, integrity and probity are present, rather than speculating on how the public might approach the issue.
The possible impact on the confidence and respect that the public would have for someone such as the appellant is relevant, but the court is required to make its own judgment as to what that should be, rather than engage in conjecture or assumption as to what it might be.
It seems to me that this approach is entirely in accord with what Sir Thomas Bingham MR said in Bolton v Law Society  1 WLR 512, 518G-H:
“The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission.”
As I read that extract, the Master of the Rolls clearly had in contemplation that the judgment as to what was required to maintain the reputation of the profession was to be made by the judge alone, drawing on what she or he considered was necessary to maintain the public’s confidence, not basing that judgment on what the judge hazarded the public might think.
A similar approach was taken by Sir Anthony Clarke MR in Jideofo v Law Society (No 6 of 2006; No 1 of 2007; No 11 of 2007) where, in response to the question posed in the first para of his judgment, “what is the appropriate test for determining an individual’s character and suitability for admission as a student member of the Law Society and then as a solicitor”, the Master of the Rolls supplied the following answer at paras 14 and 16:
“the question remains the same, namely whether the relevant evidence demonstrates that the person concerned is a fit person to be a solicitor … the character and suitability test is not concerned with ‘punishment’, ‘reward’ or ‘redemption’, but with whether there is a risk to the public or a risk that there may be damage to the reputation of the profession.”
Again, it appears to me that the Master of the Rolls clearly had in mind that this was a test to be applied by the judge, drawing on his own resources and experience.
In summary, therefore, a judge confronted by an application under section 17 must decide whether, at the time of making the application, the applicant is of good character. That assessment must be made by the judge alone. He or she may take into account the impact which past misbehaviour or criminal conduct on the part of the applicant might have on the reputation of the legal profession, but this is a matter for the judgment of the judge, without speculation as to how members of the public might react to the applicant’s admission.
The judge must not approach the question on the basis that there are some species of past behaviour which are so egregious as to eliminate the possibility of the applicant ever establishing that he is of good character.
On this account, I cannot agree with the judge’s view that the appellant’s position can be compared to a practising lawyer convicted of similar crimes of which the appellant was found guilty. The suggestion that the judge must be satisfied that the public would as opposed to should have confidence in the candidate’s suitability is misconceived.
A lawyer in practice convicted of serious crime rightly forfeits the confidence of the public. But a man convicted of serious crime while young and who has demonstrated beyond peradventure his repentance and rehabilitation stands in an entirely different place.
The point that the test for the judge should be whether the public should (as opposed to would) have confidence in the candidate’s suitability can be illustrated by a simple example. Suppose one of identical twins applies to be admitted to practice. There is a widespread belief among members of the public that he has been guilty of serious offences. In the course of the application process, it becomes unmistakably clear that it was his brother and not he who had committed the offences.
It could surely not be suggested that the innocent twin be refused admission on account of the public’s quite erroneous belief. Thus, the court must examine for itself, and on an objective basis, whether the applicant for admission is of good character. That examination should comprehend whether the candidate is possessed of the qualities necessary to command public respect but the decision on that question is one for the judge based on his or her assessment and not on any assumption as to what the public’s reaction might be.
If an applicant shows that he is of good character, is there a residual discretion as to whether he should be admitted?
It was argued that, even if an applicant shows that he is of good character, there is a discretion exercisable by the court as to whether he should be admitted to practice (as adopted by) the majority’s opinion. I do not accept that.
Much of the argument rests on the significance placed on the statement in para 17(1) that a person who is of good character and has met the educational requirements and completed all the formal steps under section 17(1)(b) to (d) is “eligible” to be admitted by the court to the practice of law.
It is suggested that, if it had been intended that a person who had fulfilled all the requirements of section 17(1) would be entitled to be admitted, it could have been simply stated that he shall be admitted, rather than that he was eligible to be admitted. This appears to me to place unwarranted weight on the term “eligible”.
In its conventional connotation, it means fit or deserving to be chosen. It does not mean fit or deserving to be considered to be chosen. In any event, I think that the use of the term would be an unusual means of investing the court with an open-ended discretion to refuse admission to someone who had met all the stipulated statutory requirements. If it had been intended that the Supreme Court should have such a wide power, that would surely have been made explicitly clear.
The provision succeeding section 17(1) reinforces the view that it was not intended that the court should have an overarching and undefined power to exclude applicants who had satisfied all the statutory criteria.
Section 17(2) provides:
“Notwithstanding the provisions of this Act or any other written law to the contrary, a national of Grenada who makes an
application to the court and satisfies the court that –
(a) he has the qualifications which would allow him to practise law in any country having a sufficiently analogous system of laws as Grenada; and
(b) he has obtained a certificate from the head of chambers of an attorney-at-law of not less than ten years standing, practising in Grenada to the effect that the national has undergone an attachment to those chambers for a continuous period of not less than six months relating to the practise of law; is deemed to hold the qualifications prescribed by law and is entitled, subject to fulfilling the conditions under subsection (1), to be admitted by the court to practise as an attorney-at-law in Grenada.”
A person applying for admission under section 17(2) is required to fulfil the conditions in section 17(1) and to meet the other technical requirements of subsection (2). If he does so, however, he is entitled to be admitted to the practice of law in Grenada. It would be, to say the least, anomalous that an applicant for admission who was not entitled to practise law outside Grenada was subject to a discretionary power of exclusion while one who had a qualification to practise law in a country having a system of laws analogous to Grenada was not. I consider, therefore, that provided an applicant satisfies the statutory requirements stipulated in section 17(1), he is entitled to be admitted to the practice of law in Grenada.
The judgment of the Supreme Court
At para 6 of her judgment, Price Findlay J held that section 17(1) “confers eligibility but not an entitlement to practice (sic) and the court retains discretion as to whether a person ought to be admitted to practice, notwithstanding that he/she has met the statutory requirements.” For the reasons given at paras 77-81 above, I consider that this conclusion was wrong in law.
It is not clear from the judgment whether, in light of this conclusion, the judge considered that it was unnecessary for her to reach a view as to whether the appellant was of good character at the time that he made his application. It may be that she felt that, since she was bound to exercise her discretion against him, it was not required of her to make a finding as to whether he was of good character. In any event, she made no such finding. In my opinion, she should have done.
Firstly, because she was wrong in law to consider that she had a discretion to refuse the appellant admission even where he satisfied all the requirements of section 17(1). Secondly, even if she had such a discretion, it was essential that the basis on which it was exercised should be made clear, so that the validity of its exercise could be examined.
The primary imperative in section 17(1) is for the Supreme Court to find whether an applicant has fulfilled the statutory requirements.
The discretion, if it existed, would come into play only if those requirements were met. Even if one assumes that a general discretion to exclude exists, it is necessary to understand whether, and on what basis, resort has been had to it.
The judge’s judgment is opaque on this. This is all the more surprising because the judge says, at para 10, that the “sole issue” was whether the appellant was of good character.
The judge observed that, if the appellant had been a practicing lawyer at the time of the commission of the offences, this would have led to his disbarment. I consider this to be, at most, of marginal relevance. The fact is that the appellant was not a practising lawyer.
And it is on his current status that the question of his good character falls to be judged.
Of course, if the appellant had been a practising lawyer at the time the offences were committed, by any reasonable standard, their commission would be judged to destroy the confidence and respect of the public in him, but it does not follow that the same reaction would now obtain, given that he has demonstrated, in the words of the Court of Appeal, evidence of rehabilitation which was “overwhelming” and that he has “lived a reformed life for the past thirty years and excelled academically.”
A practising lawyer disbarred for criminal conduct is in obvious contrast with someone seeking admission to practice for the first time after years of rehabilitation and reform following historic convictions.
A lawyer subject to disbarment as a result of recent criminal conduct is assessed on the basis of that recent conduct. That situation is self-evidently entirely different from someone who has committed offences while young and has led a blameless and wholly worthy life since, displaying conspicuous evidence of rehabilitation and reform.
There is a danger that, in making the observation that if he had been a practising lawyer the appellant would have been disbarred, the judge has been led to make the very assumption which, for the reasons I have given, she had to eschew. That assumption is, that because the appellant would have been disbarred if he had committed these offences as a practising lawyer, he is, ipso facto, ineligible for admission to practice.
I consider, therefore, that the Supreme Court’s judgment was wrong in at least two material respects. In the first place, it wrongly concluded that a general discretion was available to refuse the application of someone for admission to practice who had satisfied all the requirements of section 17(1).
Secondly, it failed to make a finding as to whether the appellant was of good character. It is also probable that the court fell into error in considering that the appellant was in the same position and fell to be dealt with in the same way as an attorney disbarred for involvement in recent offences akin to those committed some thirty years previously.
Finally, the court was wrong to suggest that some offences were so serious that there could never be any question of an applicant achieving the necessary level of rehabilitation and reform so as to overcome their effect. It is not clear, however, whether this was a factor which operated in the dismissal of the appellant’s application.
The Court of Appeal’s decision
At para 59 of its judgment, the Court of Appeal stated that although the appellant did not pose a risk to the public, “the judge was entitled to conclude that he had not demonstrated that he was of the required character to be admitted and that in any event to permit someone who had ten convictions of murder would have a negative impact on the reputation of the profession.”
This statement proceeds on the obvious premise that the judge had made a finding that the appellant had not demonstrated that he was of good character. For the reasons given earlier, this was, in my opinion, wrong. The judge had not made any such finding and the Court of Appeal’s assumption that she had compounds the error.
The Court of Appeal also considered that its role was as a reviewer of the exercise of discretion by the judge. The precise terms of the discretion which the Court of Appeal considered was available to the judge were not elucidated in its judgment. In any event, for the reasons that I have already given, the task which the judge had to perform was to apply her judgment to the various issues which arose, not to exercise a discretion. The Court of Appeal erred also on that account, in my opinion.
I would have recommended that the appeal be allowed and that the matter be remitted to the Supreme Court of Grenada so that the appellant’s application be determined according to what I consider to be the correct legal principles.