Who wants to be a barrister — or defendant?
You can’t give up one but you can insist on the other
Two slightly unusual stories this morning — one about a person who tried to relinquish a status that many people aspire to and the other about two people who are trying to retrieve a status that most people would not want.
The first case was decided last month. The second is scheduled for hearing in court tomorrow.
I wrote just over a year ago about Tim Crosland, an unregistered (non-practising) barrister who deliberately disclosed a ruling by the UK Supreme Court at a time when it remained confidential. In December 2021, five justices upheld an earlier ruling that Crosland’s conduct amounted to contempt of court.
The Bar Standards Board then charged Crosland with professional misconduct and, to nobody’s surprise, a disciplinary tribunal concluded that he should be disbarred.
Ahead of the hearing, Crosland informed the barristers’ regulator and his inn of court that he had “renounced his barrister status”. That, he he argued, was surely within his power: how could be be compelled to remain a barrister against his wishes? And if he was no longer a barrister, what power did the regulator have to bring disciplinary charges against him?
In response, the Bar Standards Board told the tribunal that the status of barrister could be granted and withdrawn only by one of the four inns of court. An inn would not normally disbar an individual facing disciplinary proceedings.
As Neil Rose first reported on his Legal Futures website, the five-person tribunal rejected Crosland’s arguments. The tribunal said:
Leaving aside the merits or otherwise of the charges against Mr Crosland in this case, it would be contrary to the promotion and maintenance of professional standards designed to protect the public if any professional who was subject to regulation could frustrate proceedings against him or her by unilaterally asserting that he or she no longer belonged to the profession concerned, particularly if the proceedings related to events at a time when that person clearly did belong to the profession concerned.
Having decided that Crosland was still a barrister at the time of the hearing, the tribunal concluded that he should now have that status removed. His inn, Inner Temple, was asked to make the necessary arrangements. Crosland was also ordered to pay £3,120 in costs.
Isabel Vaughan-Spruce and Fr Sean Gough
The second case involves two people who were arrested after silently praying near an abortion clinic in Birmingham.
The clinic was closed at the time but it is located within the area covered by a public spaces protection order made last September by Birmingham Birmingham City Council under section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014. Failure to comply with one of these orders can amount to a criminal offence.
The Birmingham City Council (Station Road B30) Public Space Protection Order prohibits, among other activities:
Protesting, namely engaging in any act of approval or disapproval or attempted act of approval or disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling.
Isabel Vaughan-Spruce is represented by the faith-based legal advocacy organisation ADF UK. They told me that she
stood motionless and prayed silently within the restricted zone on 6 December 2022, at a time the abortion facility was closed. Her presence was reported to the police who, on arrival, asked whether she was praying. She said she “might be praying in [her] head”.
The police arrested, searched and questioned her about the contents of her silent prayer and her motives for being present. On 15 December, Vaughan-Spruce was charged with four counts of breaching the public spaces protection order.
Fr Sean Gough is an ordained priest in the Archdiocese of Birmingham. For a number of years, he has prayed peacefully outside abortion facilities. On 20 December, Gough was charged with four counts of breaching the public spaces protection order.
The charges related to
parking his car within the buffer zone with a small sticker reading “unborn lives matter”,
standing motionless and praying silently near the abortion facility on two occasions, and
standing in the vicinity of the clinic with a sign reading “praying for freedom of speech”.
Vaughan-Spruce and Gough had expected to appear in the magistrates’ court. But ADF UK said the Crown Prosecution Service had decided to drop the case:
On 19 January, the CPS told Vaughan-Spruce and Gough that the charges against them had been discontinued because there was not enough evidence to provide a realistic prospect of conviction.
“If further evidence becomes available in the near future,” the CPS added, “the prosecution may be reconsidered”.
Many defendants would breathe a sigh of relief. But, given what they had been told by the CPS, Vaughan-Spruce and Gough could not be sure that the charges against them would never be revived. That’s because section 23(9) of the Prosecution of Offences Act 1985 says:
The discontinuance of any proceedings by virtue of this section shall not prevent the institution of fresh proceedings in respect of the same offence.
So their lawyers have deployed a little-known power in section 23(7) of the same act. It says:
Where the [Director of Public Prosecutions] has given notice under subsection (3) above [which permits discontinuance], the accused shall, if he wants the proceedings to continue, give notice to that effect to the designated officer for the court within the prescribed period; and where notice is so given the proceedings shall continue as if no notice had been given by the Director under subsection (3) above.
According to their lawyers, the two defendants gave notice within the time limit. Both said that only a court could provide the clarity they were seeking.
“Many of us need an answer as to whether it’s still lawful to pray silently in our own heads,” said Vaughan-Spruce. “That’s why I’ll be pursuing a verdict regarding my charges in court.”
If the CPS has found more evidence, it could proceed with the case against either or both defendants. Alternatively, it could offer no evidence and they would be acquitted.
Update 16 February: ADF report that both defendants have been acquitted of all charges. The Daily Mail adds that the charges were dropped by the CPS.
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It seems to me that a barrister in such circumstances might broadly be likened to a serving police officer facing disciplinary proceedings where for a very long time that would have enabled him/her to evade due process. And so I am against that path towards evasion.
As to anti- abortion protests of the kind considered I have been and remain deeply troubled when solitary, mere, mute protests as described can be viewed as illegal. Active resistance by way of obstruction to the relevant premises may indeed be another matter.
How on earth did we ever get to this particular UNpretty pass?