Acting to stop harm: the FCA and Appointed Representatives
On 28 May 2012 a pupil barrister, Henry Mostyn, was disciplined by the Bar Standards Board (BSB) in the form of a reprimand, fine and order to pay costs for possession of cocaine and MDMA. Mostyn had received a caution from the police after the drugs were discovered on him whilst standing in the queue of an east end nightclub on 4 December 2011. The street value of the drugs was estimated to be £40.
Opinions and comments posted in response to articles in the press covering this story reveal diverse attitudes on the finding, from those applauding the exercise of common sense and compassion in relation to a young man at the start of his career, to decrying the perceived message of acceptability about drug use at the Bar and the leniency of the finding. In relation to the latter opinion, it has not escaped notice that Mr Mostyn is the Eton and Oxford educated son of a High Court judge with some notoriety of his own. One might console those that feel he got off lightly by pointing out that the infamy brought with the press coverage arguably augments the severity of the BSB’s finding.
Leaving that aside, from a professional discipline point of view it raises the question of at what stage a “professional-in-training” is accountable to the regulator of his or her chosen profession. Do students or trainees who are not regulated by their future professional body get off more lightly if their conduct is found wanting? To compare with health care regulation, only the General Optical Council regulates student opticians therefore it could be seen as unusual that the BSB regulates pupil barristers when trainee solicitors do not have a corresponding answerability to the Solicitors Disciplinary Tribunal during their training contract. A quirk of training for barristers - although Mr Mostyn had been called to the Bar at the time of his offence and was therefore a “barrister”, he would not in fact be entitled to use that term in relation to the provision of legal services until the completion of his pupillage and receipt of a practising certificate. In layman’s terms then, Mr Mostyn was a student or a trainee barrister. Lucky trainee solicitors you might think.
However, trainee solicitors are required to tell the Solicitors Regulation Authority of matters that may go to their character and suitability prior to admission to the Roll of Solicitors and receipt of a police caution is specified as just such a matter that should be disclosed. Any evidence of a “lamentable lack of judgment” such as was found in Mr Mostyn’s case before the BSB would be of just as serious if not more serious consequence to a solicitor at the point of entry to the Roll than it was for Mr Mostyn who was already a member of the Bar and had secured his pupillage. At the time that Mr Mostyn received his caution, he was two months into his pupillage at a prestigious commercial set, a pupillage he continues to hold.
Not that this episode would have necessarily gone under the radar if Mr Mostyn received the caution prior to his call to the Bar but after having been admitted as a member of his Inn. Last week Kingsley Napley acted pro-bono for a student facing an Inn’s conduct Committee in relation to allegations of cheating in exams. The clear message is that once you have taken steps along a professional path, a blemish free record of conduct is something that should be preserved very carefully to avoid the risk of stymieing future progression in that career. Guidance on what should and should not be disclosed by professionals or students to their regulators/professional body is often drafted along the lines of “anything that could discredit”. That embraces a wide range of conduct, depending on interpretation. It is often better to be open about such things and have available the argument of insight than have it discovered and be forced onto the back foot. That will always be something for the professional-in-waiting to weigh up.
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