An aspiring barrister has failed to persuade the High Court that the Bar Council was acting unlawfully by not exercising discretion after he twice failed a module on the Bar Professional Training Course (BPTC).
Steven Prescott, a 48-year-old law student, failed to pass a retake for an opinion-writing module on his BPTC course. He must now retake the entire course again to progress towards qualification.
Prescott, who described his aspiration as a ‘vocational calling’ and has previously held jobs including minister of religion and construction project manager, achieved 46% in his retake, which the judge said fell ‘very far short of the 60% required to pass’.
In the Queen on the application of Steven Prescott v General Council of the Bar and the University of Law (Birmingham), Prescott challenged the regulatory requirements that meant he was unable to retake the module without retaking the whole course, and the Bar Council’s refusal to exercise discretion.
He claimed that requiring him to retake the whole BPTC breached his right to a private life under article 8 of the European Convention on Human Rights and would breach the common law duty not to act disproportionately.
The Bar Council, through the Bar Standards Board, ‘erred in law’ by not recognising that he had already shown he was competent in opinion writing, Prescott added, describing the requirement to demonstrate this in a constrained time period as ‘unreasonable, irrational and very unfair’.
But Justice Hickinbottom, in the High Court, ruled that the setting of standards was a matter for the BSB and not the court, and pointed out that Prescott never made an application to the regulator for an exemption.
He said the common law argument lacked scope and said that the respect to private life does not arise in the context of the setting of requirements for entry into a particular profession.
‘A person has no right, under article 8 or from elsewhere, to work in a particular profession,’ he said.
Addressing the claim that the scheme was disproportionate, Hickinbottom said: ‘The fact that the claimant may find it difficult to proceed (because of the need to pay a second BPTC fee), or considers that he only just failed... or considers he has a calling to be a member of the bar, or is of mixed race, or has a disabled partner... may be important - possibly, vitally important - in other contexts; but they have little if any weight in the proportionality balance here.’
He dismissed the claim, saying that the claimant fell ‘very far short of persuading me that the Bar Council has acted in any way unlawfully'.