Garnham v BSB [2017] EWHC 1139

Mostyn J allows the appeal of disbarred barrister convicted under the Social Security Administration Act

Background: Mr Garnham was called to the Bar in November 2012. In 2014, he was convicted for two offences under section 112 of the Social Security Administration Act 1992. The facts giving rise to the conviction occurred before Mr Garnham was called to the Bar. In short, he was a lodger in a house occupied by Ms Penney. To secure housing benefit, Mr Garnham produced a ‘lodger’s licence’ to the local council which named Ms Penney as the licensor and Mr Garnham as the licensee. Ms Penney, however, was only renting the house from the owner who was living in Hong Kong. As Mostyn J described at [12]:

‘He should have gone to the trouble of getting the owner in Hong Kong to complete the document and sign it. However, in terms of moral culpability, the delinquency of Mr Garnham seems very modest indeed.’

BSB hearing: Mr Garnham was charged with professional misconduct concerning the conviction and an alleged failure to disclose the conviction to the BSB. Mr Garnham barely engaged and the tribunal, chaired by Judge Matthews QC, decided to proceed in his absence.

An issue arose as to the nature of the conviction. An offence under section 111A of the Social Security Administration Act 1992 involves an element of dishonesty. Section 112 of the Act, however, does not. The tribunal appeared to conclude that Mr Garnham’s conviction involved some element of dishonesty. Mostyn J noted the following in his judgment:

[23] ‘The colloquy between counsel, Mr Mooney, and the panel makes interesting reading. It is clear that the chairman was of the view that if you are convicted under section 112 then you are ex hypothesi guilty of dishonesty. That much is clear from page 11 of the transcript where the chairman, Judge Matthews QC, contrasts section 111, which explicitly refers to dishonesty, with section 112. She says this: 

‘Section 112 is knowingly making a false representation. That brings the mens rea in at a later stage because a false representation you have to know it is false to be made. That has a different kind of element of dishonesty to it. It seems to me to be quite straightforward.’

[24] That statement seems to me to express a view that there is inevitably in every section 112 conviction an element of dishonesty. As I have said earlier, that may be true in a literal sense, but I do not believe it to be true in a legal sense because otherwise Parliament has passed an entirely otiose amendment to the Act in question.’

In allowing the appeal, Mostyn J concluded as follows:

[27] ‘The final phrase of this document fixes the Defendant with an act of dishonesty. Of course, where dishonesty is found in disciplinary proceedings against a barrister, disbarment almost inevitably follows. I do not accept that every offence under section 112 involves dishonesty as it is understood in disciplinary proceedings involving barristers. There can be many circumstances which I can contemplate in which an offence could be committed under section 112 which would not involve the stigmatic affixing of a finding of dishonesty.’

 [28] ‘As I have said, in this case, in circumstances where it seems to be agreed or at least it is not disputed that Mr Garnham was entitled to housing benefit anyway, it is hardly dishonest if he puts the wrong person’s name down as licensor. I do not accept the argument, which seems to have originated from the chairman of the panel and which has been accepted in argument by Mr Mooney, that every offence under section 112 involves dishonesty and with it the likelihood of disbarment. In any event, I am not satisfied at all that the reasoning of the panel in relation to this serious matter is at all satisfactory.’

The sentence of disbarment was set aside.

The judgment (handed down in March 2017 but appearing online only recently) can be found here.