Beckworth Clears the Path
The court clarifies the extent to which regulators may take action in respect of conduct in someone’s private life, as Susanna Heley explains
Most people will be aware that Ryan Beckwith is one of a relatively small number of individuals who have been successful in appealing a decision of the Solicitors Disciplinary Tribunal (SDT) against them. In Beckwith v SRA, the Divisional Court handed down a relatively short, yet extremely cogent judgment which is arguably the most important decision in the field of professional regulation in the last 27 years. Many of the important decisions occurring since the Bolton decision of 1993 have focused on certain aspects of regulation or on the issue of dishonesty. I discount the Supreme Court decision in Ivey v Genting Casinos [2017] UKSC 67 for these purposes because it is not a case on professional regulation, despite its undeniable impact on the field. The reason the Beckwith case is so important is nothing to do with it being a #MeToo era case, concerning conduct relating to sexual matters (although it appears implicit in the judgment that this case was brought and decided on grounds of public perception rather than genuine regulatory need). The true import of the case is rather that it addresses in general terms the extent to which a regulator is entitled to take action in respect of conduct within an individual’s private life. Paragraph 54 of the judgment is something all solicitors and firms should take to heart: “There can be no hard and fast rule either that regulation under the Handbook may never be directed to the regulated person’s private life, or that any/every aspect of her private life is liable to scrutiny. “But principle 2 or principle 6 may reach into private life only when conduct that is part of a person’s private life realistically touches on her practise of the profession… or the standing of the profession…
Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook. “In this way, the required fair balance is properly struck between the right to respect to private life and the public interest in the regulation of the solicitor’s profession. Regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.” Understanding the extent of the SRA’s jurisdiction is relevant to the extent of firms’ and individuals’ reporting obligations under their respective code of conduct; and may well be relevant when firms are considering internal complaints against staff members, particularly those arising from personal relationships and comments made on social media. Until the Beckwith decision, it was common practice for the SRA to use principles 2 and 6 (now, confusingly, 5 and 2) as a catch all requirement for all conduct not expressly addressed within the detail of the rules – whether or not occurring in private life.
Thus, those with criminal convictions, such as drink driving, would routinely find themselves facing allegations of a lack of integrity and bringing the profession into disrepute. Beckwith calls that approach into question and, arguably, increases the burden on the SRA to demonstrate the requisite connection with the purposive intent of professional regulation. In terms of criminal convictions – even lower-level convictions – I suspect the SRA will not have much difficulty in establishing that it is at least an implicit standard of conduct within the relevant rulebook that solicitors must show proper respect for the law (as distinct from the rule of law embodied in principle 1). That does not mean a criminal conviction will automatically meet the ‘qualitatively relevant’ test espoused by the Divisional Court, but I suspect that the SRA, the SDT and the courts will consider the threshold to be low where a criminal conviction is in issue. Looking ahead, I would expect the areas which will cause most difficulty will be allegations arising in the context of personal relationships, particularly in relation to the breakdown of such relationships. I have seen cases where solicitors going through relationship breakdowns, divorces or affairs have had to explain extremely personal matters to their regulator, as a result of allegations made by their former partner. Bickering work colleagues have aired confidential or private communications to the SRA in order to embarrass or discredit their supposed nemesis.
There can be a vindictive or playground element to some complaints but, of course, the SRA must take the intelligence it receives seriously and investigate where appropriate, irrespective of the complainant’s motives. We live in a world where our private lives are increasingly put on display through social media interactions. People are quick to jump on the latest trending topic and call for the heads of those not following popular opinion. The general public seems more willing to complain and to pursue individuals by any means available, including regulatory complaints. The SRA is keen to ensure people know how to complain, but there is less information readily available as to when it’s appropriate to complain. There will always be individuals who will make or pursue allegations from a misplaced but pervasive sense of injustice.
No doubt the SRA has its own experience of people making such complaints against it and its own staff members. In the Beckwith case, the Divisional Court has given us a much clearer path to determining which parts of our lives are outside the jurisdiction of the regulator, and confirmed the necessity of a connection between an alleged lack of integrity and a recognisable professional principle. No doubt the issue will be argued repeatedly in future cases and further refined. But for now, the Beckwith decision stands as a welcome bulwark against the prospect of regulatory mission-creep into arenas which are private. The Beckwith decision also lays down a further marker on costs and may tend to suggest it’s time for the SDT to consider the more frequent use of orders requiring detailed assessment of costs, rather than summarily assessing costs claims running into six-figure sums. Finally, it also puts to rest any suggestion that there is a concept or threshold of ‘professional misconduct’ which must be added to the solicitors’ regulatory regime in order to establish the SDT’s jurisdiction.
I suspect there may be further arguments to be had about the court’s ability to impose its own concepts into the statutory regime. It has, after all, already done so. At the time of writing, the SRA has not formally announced whether it will appeal the decision; commentators generally share the view that an appeal is unlikely. Should the SRA wish to push back at the High Court’s limitation of its jurisdiction in relation to matters which may have less of a connection to its regulatory regime, it may do so by amending the content of the current rule book using its statutory process, or by pursuing a more promising case in future.
