Privy Council dismisses Layne’s application to be admitted to the bar

by Linda Straker

• Privy Council dismissed Ewart Layne application
• Supreme Court argument focused on “good character”

The Privy Council on Monday, 18 March 2019 dismissed the application by Ewart Layne, one the Grenada 17 who attained his legal education while imprisoned, to have the Supreme Court in Grenada admit him to practice as a member of the local bar.

The Privy Council heard the matter in October 2018 before Lord Kerr, Lord Wilson, Lord Sumption, Lady Black and Lady Arden.

Layne was represented by Edward Fitzgerald QC; Tim Nesbitt QC; Amanda Clift-Matthews; Ruggles Ferguson and Cajeton Hood (instructed by Simons Muirhead & Burton LLP).

The respondent was the Attorney General of Grenada (at the time the AG was Sir Lawrence Joseph), but he had informed the Board that he does not intend to defend the matter before the Board.

Layne, who was released from prison in 2009, had fulfilled the educational requirements for the call to the Bar, and on 7 October 2013, applied to the Supreme Court for admission to practice as an attorney-at-law.

His application for admission as an attorney first came before Price Findlay J. There was no issue as to Layne’s educational qualifications. There was no opposition to the application by the Attorney General of Grenada or the Grenada Bar Association. The argument focused on “good character” for the purposes of section 17(1) of the 2011 Act.

According to the judgment: 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.”

Layne appealed to the Court of Appeal principally on the grounds that the judge had erred in the exercise of her discretion. He submitted that “good character” meant present good character (“the present good character issue”), and that he had demonstrated that requirement. The Attorney General, Solicitor General and the Grenada Bar Association were all represented before the Court of Appeal and made submissions.

Fitzgerald’s submission according to the judgment said that good character must be determined as at the date of the hearing so that it is good character following rehabilitation that matters and the court must, therefore, find that the requirement for good character is satisfied if an applicant with a criminal record can show that he has put the past behind him and become reformed.

“Accordingly, the issue is quite simply whether the court can say the applicant has shown that he is so rehabilitated that he can now be said to be of good character. Once that point is reached, it is no longer open to reject his application on the grounds of risk of damage to public confidence,” said the judgment which was published on the Privy Council website.

The Privy Council Board considers that the good character condition has 2 facets: the candidate’s attributes and the risk of damage to public confidence in the profession, and its majority conclusion said for the reasons given the Board humbly advised Her Majesty that this appeal should be dismissed.

“The fact that Mr Layne is now a man of good standing in the community is certainly a necessary requirement for the good character condition for admission to the Bar of Grenada to be satisfied, but it is not in itself enough. Public confidence in the profession had also to be considered.”

“The judge’s assessment was that there was sufficient risk that it would be damaged by acceding to Mr Layne’s application and so that facet of the good character condition was not met. The Board concludes that there was no reviewable error in her decision on this matter,” said the conclusion.

However, Lord Kerr, dissenting said that he cannot agree with the judge’s view that the appellant’s position can be compared to a practicing 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 a serious crime while young and who has demonstrated beyond peradventure his repentance and rehabilitation stands in an entirely different place,” said Kerr according to the judgment.

“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,” he said as a disposal recommendation.