A case of dissent

Sexual misconduct cases continue to divide opinion within the profession and, recently, among the Solicitors Disciplinary Tribunal (SDT) panel hearing such a case.

In SRA v Richard Daniel Smith, the respondent was accused of regularly touching the bottom of a relatively junior employee over the course of about five months.

The allegations were found not proved in a majority judgment. Unusually, the solicitor chair of the panel published a dissenting judgment.

As with most cases involving alleged sexual misconduct, the SDT was required to make findings based on its assessment of conflicting witness evidence of the respondent and his accuser. There was little written evidence and limited value in the evidence of corroboration witnesses.

The judgments are an interesting read, not least for the sheer number of preliminary is- sues, including concerns of possible coaching of witnesses, the propriety of topics raised in cross examination, disclosure of communications between witnesses, late admission of evidence – and even the seat taken by the respondent’s wife in the hearing room.

The skirmishes started with a heated exchange between counsel for the Solicitors Regulation Authority (SRA) and counsel for the respondent relating to the SRA’s private discussion with Person A prior to the hearing. Concerns were raised that the SRA had crossed the line from legitimate witness familiarisation to improper witness coaching.

The SDT determined that the SRA had not crossed that line. In cases which turn on hotly contested oral evidence, it is particularly important that the integrity of the evidence before the SDT is protected; and that there is no suggestion of impropriety in relation to interactions with witnesses.

In further exchanges, counsel for the SRA objected to a line of questioning by counsel for the respondent, said to impugn Person A’s sexual history.

The SDT confirmed that in general, a witness’ sexual history would not be an appropriate subject for cross examination. But in the circumstances, the SDT allowed the questioning within reason based on the explanation given as to relevance.

The SRA’s late introduction of evidence – said to be by way of rebuttal – was refused because it was too late to introduce material on which it had elected not to rely in preparing its case.

The SDT acceded to a request that the respondent’s wife not be permitted to sit next to the respondent but should sit in the public gallery, due to the perceived risk of unconscious influence. If allowed to sit together, the panel would be encouraged to see him as a loving family man so less likely to engage in sexual misconduct at work.

Evidence-related preliminary issues are matters that the SDT increasingly has to grapple with as cases become longer and more complex. Issues touching on witness credibility, and the weight to be given to their evidence, can be particularly contentious.

By their nature, these issues will arise in many cases centring on allegations of sexual misconduct where the evidence is likely to be the uncorroborated evidence of those directly involved.

These issues may appear fairly minor, but they reveal the particular tensions which arise in sexual misconduct cases – particularly as to issues of unconscious bias and the factors which may influence the assessment of oral evidence.

The problem of how to deal with such evidence is thrown into stark relief by the panel’s inability in Smith to reach a consensus. The majority – both extremely experienced – found that Person A was prone to exaggeration and that the allegations were not proved.

The dissenting judgment – by an experienced solicitor chair – approached the evidence in a slightly different way and would have held that Smith should have been struck off.

As with the Leigh Day case (SRA v Day, Malik, Crowther and Leigh Day (A Firm) Case No 11502/2016) in which a dissenting judgment was also published, the main point of disagreement for the panel related to the credibility of a key witness. The minority was unpersuaded by Martin Day’s evidence, largely in consequence of how some panel members saw his presentation as a witness.

Similarly, in Smith the panel could not agree who was the more credible witness and why. The majority judgment said there were inconsistencies in Person A’s evidence which could not be overlooked, and which rendered it impossible to find the allegations proved based on her evidence.

The SDT is aware of the post #MeToo zeitgeist as is apparent from the chair’s comment in his dissenting judgment: “In less enlightened times, there was a view that the uncorroborated evidence of a female in cases of unwanted groping and inappropriate touching should be approached with caution. Such views, rightly, are now regarded as having been misconceived.”

That comment is undoubtedly true in the general sense. There is, in my view, no call for approaching such evidence differently to all other oral evidence assessed by the SDT – rigorously and fairly.

The structure of the dissenting judgment starts from the premise that Person A should be believed, because there was no good reason for her to lie given the obvious potential for detriment to her in making the allegations. The dissenting judgment goes on to assess and discount reasons to move from that starting proposition and describes Smith as a “singularly unimpressive witness”.

The reasoning in this case is enlightening as to how the SDT approaches evidence and the points on which decisions can turn. The fact-specific question as to whether a client’s evidence was reliable or tainted, because he had been provided with a completed seating plan by the respondent, was particularly enlightening.

The majority found no issue with his evidence and the minority considered it tainted as a result of the pre-prepared plan being provided.

I don’t envy the panel the task of not only deciding on such conflicts of evidence but also deciding where the line is drawn in terms of testing the evidence. The majority found that Person A presented as a capable witness, for whom giving evidence was an ordeal.

It isn’t clear from the judgment whether the dissenting member’s reasoning flowed from that same impression of Person A as a witness, or whether there was also a divergence in the direct assessment of her evidence given in person.

It’s easy to lose sight of the fact that respondents to SDT proceedings are, almost universally, in unfamiliar territory and under tremendous personal and professional pressure. Vulnerability is not limited to those giving evidence for the prosecution. Fairness has to apply equally to both sides.

With this in mind, a striking factor about the dissenting judgment is its imputation of a possible motive to the respondent: “The respondent may also have been motivated by a perverted desire to obtain gratification by the exercise of power – the power wielded by a partner in a law firm in his ability to humiliate a relatively junior employee.”

It’s not at all clear from the dissenting judgment what evidence supported this statement. Given its inflammatory nature, one might have expected to see an explanation for it.

Smith, having lost his job and endured a trip to the SDT to vindicate his reputation, is now in a situation where adverse speculation has been made against him in a dissenting judgment – against which there’s no right of appeal as it is not the judgment of the tribunal.

One wonders whether the consideration given by the SDT to the respondent’s Article 6 and 8 rights ought to have been explained in more detail.

Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com