Rehan Malik v Governor of HM Prison Kindley

Where a litigant seeks bail in habeas corpus proceedings, the court may adjourn the bail application if a prior issue concerning representation or rights of audience requires careful determination. The need to progress a liberty-related application must be balanced with procedural clarity, proper reflection and the administration of justice. A court should not grant an ad hoc right of audience under the Legal Services Act 2007 without first considering the purpose and implications of the statutory power and obtaining any necessary assistance. The court may determine that preliminary issue on the papers and give directions for representations from relevant professional bodies.

The applicant had been extradited to Germany, convicted there and returned to England and Wales to serve his sentence under the Repatriation of Prisoners Act 1984. He brought habeas corpus proceedings challenging the lawfulness of his detention and subsequently applied for bail within those proceedings.

The hearing concerned bail, but the applicant wished a disbarred former barrister to address the court as a lay representative. The court also questioned whether solicitors assisting the applicant were acting on the record. The central issues were whether the proposed advocate should be granted a right of audience under the Legal Services Act 2007 and how the representation arrangements should be dealt with before bail was determined.

1. Bail adjourned. The application for bail was adjourned to the scheduled hearing on 27 October 2022. The court considered that it should first make as much progress as possible on the substantive habeas corpus proceedings and then, if appropriate, deal with bail on a more informed basis.
2. The court had not granted the proposed lay representative a right of audience in the proceedings. Any earlier permission granted by other judges was temporary and related only to earlier directions hearings.
3. The question whether to grant a right of audience under section 19 and Schedule 3 paragraph 1(2)(b) of the Legal Services Act 2007 was a prior question requiring determination before the court heard substantive bail submissions from the proposed representative. The court needed to consider the purpose of the statutory power, the implications of granting or refusing permission, and the assistance owed to the court and the opposing party.
4. The judge expressed no concluded view on the merits of granting rights of audience. Further materials were required, including any assistance that the Bar Standards Board and the Law Society wished to provide. The issue would be determined on the papers by written ruling.
5. The court also required clarification of whether Harper Law were acting for the applicant and the consequences of being, or not being, on the record. No conclusion was reached on that issue.
6. Directions were made for notification of the professional bodies, filing of further observations and materials, written determination of the preliminary issues, and liberty to apply.

Not stated in the judgment.