The Jefferson Cumberbatch Column – An Ineradicable Blot
Readers will recall that a raging topic in the public domain before and during the campaign for the May 2018 general election was the legal entitlement of the then Honourable Leader of the Opposition, now the Honourable Prime Minister, Ms Mia Mottley, to practise law in Barbados, since she did not possess the Legal Education Certificate (sic) awarded by the regional Council of Legal Education. It took the explanatory intervention of her father, Mr Elliott D Mottley [as he then was] and, I suppose, the result of the election itself, to quell further discussion of this matter. I recall that I wrote then that the decision to admit Ms Mottley to the local Bar was a decision of the High Court of Barbados and could be overturned only if there were a timeous appeal of the matter on a point of law.
Indeed, a recent decision of the Judicial Committee of Her Majesty’s Privy Council [JCPC], on appeal from the Eastern Caribbean Court of Appeal[Grenada], confirms that admission to the Bar is not merely a ceremonial occasion but, rather, in substance a legal decision that may result in a decision that is adverse to the applicant. This decision is Layne v Attorney General of Grenada, delivered by the Board on March 18, 2019.
Despite serving a sentence of imprisonment for murder, Mr Joseph Ewart Layne dreamt of becoming a lawyer. His first step was to secure an LL.B, which he duly completed with honours by correspondence from London University, Clearly bitten by the studying bug, he next proceeded to read for his Master’s in Laws from the same university. At some time, he also secured a Bachelor of Science (Accounting) from Oxford Brookes University in the UK with First Class Honours. Having served 26 years of the 40-year term imposed on him, Mr Layne then enrolled at the Hugh Wooding Law School in Trinidad & Tobago to pursue his professional training, leading to the Legal Education Certificate, now a sine qua non of admission to most of the regional Bars. It is worthy of note that being an LL.B graduate of a university other than the University of the West Indies, Mr Layne would first have had to pass an entrance examination comprising a number of subjects in order to be admitted to Hugh Wooding. He was duly awarded the Certificate of Legal Education in September 2013.
Thereafter, Mr Layne applied to be admitted to the Grenada Bar. The central issue was whether Mr Layne possessed the good character required by section 17 (1) of the Legal Profession Act 2011 of Grenada. This provides, where relevant-
17(1) Subject to the provisions of this Act, a person who makes an application to the Supreme Court, and satisfies the Supreme Court that he-
(a) Is of good character; and either
(i) holds the qualifications prescribed by law;………………………………………………………………………shall be eligible to be admitted by the Court to practise as an attorney-at-law in Grenada.
So far as the judge before whom the application was made, Price Findlay J., was concerned, good character was “The aggregate of moral qualities which belong to and distinguish an individual person, the general result of one’s distinguishing attributes. That moral pre-disposition or habit, or aggregate of ethical qualities which is believed to attach to a person on the strength of common opinion and report concerning him.”
With regard to lawyers, the “guardians of our fundamental freedoms”, they had to command the personal confidence of not only lay and professional clients but [that of] other members of the Bar and of judges”; and while there was no rule automatically barring someone who had been convicted of an offence from practising the law,” an applicant with the background of the appellant had to make an extraordinary showing of rehabilitation…” In her view, the test was whether there was “a potential risk to the public, or, more importantly, whether there will be damage to the reputation of the profession” The court, she stated, was “concerned with the maintenance of public confidence in the members of the profession.”
After re-emphasizing that while rehabilitation was important, it may not be possible to make a “show of rehabilitation in the face of past serious misconduct”, the judge had regard to Mr Layne’s youth at the time of the murders (he was only 25 years of age) but held that his leadership responsibilities demonstrated his maturity at that age.
Ultimately, she concluded that although the applicant was a man who had accomplished much, nevertheless, having reviewed the evidence and taking into account all the relevant considerations, and the authorities in other jurisdictions, she was constrained to refuse this application for admission.”
Mr Layne’s appeal to the Eastern Caribbean Court of appeal was given short shrift, the judges there applying the principle that an appellate court should be reluctant to interfere with the judge’s exercise of discretion (sic), and therefore limiting its decision to the question whether the exercise by the judge of her discretion was susceptible to review in an appellate court. The Court of Appeal concluded that there was no basis on which it could properly set aside the judge’s exercise of discretion in this case, and dismissed the appeal.
On further appeal to the Judicial Committee, their Lordships dismissed the appeal by a four to one majority. For those interested in reading the details of the Board’s respective reasoning, the judgment may be found at http://www.bailii.org/uk/cases/UKPC/2019/11.html
For the younger readers, the murder to whose commission Mr Layne was found to be a party was no ordinary murder in the history of Grenada. It was the summary execution of the then leader of the country, Mr Maurice Bishop, and nine others in the aftermath of the schism in the New Jewel Movement that had seized power in Grenada in 1979. Indeed, if memory serves me correctly, Mr Layne, then deputy Minister of Defence was alleged to have played a significant role in the deaths.
The question begs asking, given that the events happened nearly forty years ago, that the killings were of a political nature under the belief that they were necessary for the preservation of the state, and Mr Layne’s subsequent impeccable behaviour and academic achievement, is this a man who is liable to be deservedly denied the respect of the populace, the judiciary, and his fellow members of the Bar? Or is the dismissal of his application merely a reflection of the horror still felt by Grenadians at the entire sorry episode so may years ago?
While I view the judgment of Price Findlay J to be unimpeachable, (she must have been well trained!), I incline more to the reasoning of Lord Kerr, the lone dissentient in the JCPC, who argued cogently that “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”.