Rehan Malik v Governor of HM Prison Hindley (No. 2)

The statutory power to grant a lay person rights of audience is discretionary and must be exercised in the interests of justice. The court must respect Parliament’s decision that advocacy will ordinarily be undertaken by regulated advocates, while considering the circumstances of the individual case.

A former barrister who has been disbarred and who holds himself out as providing remunerated advocacy presents particularly serious policy concerns. The court must consider the wider public interest, the integrity of the regulatory regime, available safeguards, and whether regulated representation is realistically available. Prior involvement in a case and the resulting practical momentum cannot make permission self-fulfilling.

The applicant, who was pursuing habeas corpus and bail proceedings while in custody, sought permission for Michael Shrimpton to act as his advocate. Mr Shrimpton was a disbarred former barrister who had assisted the applicant as a remunerated legal consultant. The application was unopposed in the sense that the respondent, the Law Society and the Bar Standards Board adopted neutral positions.

The court also considered concerns about Harper Law UK’s role in receiving and forwarding documents while not formally acting on the record. The central issue was whether granting Mr Shrimpton rights of audience for the substantive hearings would be in the interests of justice under Schedule 3 to the Legal Services Act 2007.

1. The application for rights of audience was refused. The court held that granting Mr Shrimpton permission to advocate at the substantive habeas corpus and bail hearings would not be in the interests of justice.

2. A McKenzie Friend has no independent right to act as an advocate. Rights of audience are a distinct statutory matter. Although Schedule 3 to the Legal Services Act 2007 preserves the court’s power to grant an individual a right of audience in particular proceedings, that power must be exercised consistently with the statutory scheme and the ordinary restriction of advocacy to regulated advocates.

3. The relevant assessment is fact-sensitive. It includes the relationship between the litigant and proposed advocate, whether the arrangement is commercial, the litigant’s reasons and difficulties, the proposed advocate’s experience, relevant court orders, the assistance likely to be provided, and the consequences for the statutory regulatory regime and public confidence. The burden lies on the litigant seeking permission to show that it is in the interests of justice.

4. The fact that the case concerned liberty, that the hearing was imminent, and that Mr Shrimpton had already assisted with drafting and appeared at directions hearings did not determine the application. Those circumstances had to be considered against the wider public interest. Allowing a disbarred former barrister to establish a remunerated practice based on obtaining ad hoc permission risked bypassing the regulatory safeguards, professional duties, insurance arrangements and disciplinary structures established by Parliament.

5. The court rejected the submission that practical momentum could justify permission. The applicant had not provided adequate evidence that a regulated barrister or solicitor advocate was unavailable or unaffordable. The existing written material could be adopted by the applicant or used by another advocate, substantially reducing any disadvantage caused by refusal.

6. The court agreed with the reasoning in Azumi and Clewer that granting rights of audience to a person disciplined so as to lose professional authorisation could subvert Parliament’s regulatory scheme. The court also relied on the principles in D v S, Clarkson, Paragon Finance, In Re N and Graham.

7. On the separate issue concerning Harper Law UK, the court made no order. Providing the firm’s address care of the firm in the bail application did not itself establish that the firm was on the record. The court considered that the firm should decide whether to come on the record in light of future arrangements.

Not stated in the judgment; this was a first-instance determination in the Administrative Court.