Foreign Convistions
Solicitors must not ignore a foreign conviction when fulfilling their reporting obligations, warns Susanna Heley
It is relatively rare these days for the Solicitors Disciplinary Tribunal (SDT) to have to revisit the provisions of the old solicitors’ practice rules (SPR). For those who are either too young or don’t remember, the SPR were effectively the pre2007 equivalent of the Solicitors Regulation Authority (SRA) principles.
However, the recent SDT case of SRA v El Diwany is a timely reminder of the long arm of the SRA’s regulatory reach – as well as both the extent and importance of reporting requirements. The case is noteworthy not only because it required the SDT to revisit the SPR, but because it also required the SDT to consider the correct approach to criminal convictions outside England and Wales in relation to conduct unconnected with the solicitor’s practice. El Diwany was admitted as a solicitor in 1990 and had a long and apparently unblemished career in practice – at least the SDT findings do not mention any other matters of concern having been raised. In 2017, his then employers discovered that he had a criminal record in Norway and reported the matter to the SRA.
It transpired that El Diwany had two convictions in Norway dating back to 2001 and 2003 in relation to what the SRA described as harassment offences contrary to S.390(a) of the Norwegian Penal Code. The SDT reports that he was convicted in absentia in relation to the 2001 hearing for which he was fined; and in light of an admission in 2003 for which he received a suspended custodial sentence.
The conduct in issue was reportedly numerous calls and correspondence directed at a Norwegian resident, including ‘reports’ he sent to neighbours and various Norwegian institutions. The SDT quoted from one of the letters El Diwany admitted to sending. It referred in strong terms (described as ‘industrial language’) to sexual behaviour, abortions and similar extremely personal themes. Needless to say, the language used would certainly have offended the SRA’s warning notice on offensive communications if used today. In defence, El Diwany disputed the fairness and propriety of the Norwegian proceedings on several grounds. He stated that he had not reported the convictions to the SRA as “any fool” could see he would not have been convicted in the UK and that he was not obliged to report such “utter rubbish”.
The SDT was not swayed by his position and found that there had been a clear obligation to report to the SRA – notwithstanding his firmly-held beliefs about the validity of the convictions. The SDT found that El Diwany’s approach amounted to setting himself beyond the scope of regulation and determined that there was no option but to strike him off. It should be noted that the SDT fully accepted that he had been subjected to provocation. He had himself received vile communications as a result of press articles in Norway which had caused him to be understandably upset and angry, triggering his actions. Notwithstanding the substantial personal mitigation, the SDT found that El Diwany had repeatedly misled his regulator in confirming – upon annual renewals of his practising certificate – that he had nothing relevant to report. The SDT didn’t consider it credible that a solicitor should not be aware that a conviction for harassment should be a serious matter or that such a conviction would not be reportable.
Despite El Diwany’s strongly-held views as to the soundness of the convictions, it was not for him to usurp the role of the regulator and ignore his obligation to report. The proper course was to report the matter to the regulator and to set out the complaints against the conviction by way of mitigation or background in the report. The facts of this case are unusual. There can be no doubt the SDT was unimpressed by the fact that El Diwany continued to publish a website which had been the subject of the 2003 conviction. The failure to report the conviction at the time (or at any relevant time since), including during the changeover of regulatory regimes, was seen as a significant aggravating factor.
One might go so far as to suggest that a strike off may not have been considered necessary had El Diwany reported the convictions at the time. Indeed, things have changed so much since 2003 that a report at that time would have predated the SRA and any allegations would likely have been heard by an SDT whose fining powers were set at a maximum of £5,000. The case is a reminder that all solicitors must be cognisant of their duties to their regulator; and to take care when completing declarations such as those made upon their annual practising certificate renewal forms.
Confirming the accuracy of the standard declaration is not simply a formality, it is a representation made to your regulator and should be treated as important. Cases involving foreign convictions are relatively few and far between. Hopefully solicitors and prospective solicitors will be aware that we are classed as a notifiable occupation. This means there is an expectation that police will report recordable convictions, cautions, reprimands and final warnings to the SRA (and, in some cases, to a relevant employer) – and may be permitted to report other locallyrecorded information. There is no such arrangement in relation to foreign convictions.
The result is that reportable matters which occur abroad may present particular difficulties for firms and compliance officers for legal practice since, as the SDT acknowledged in this case, it is quite unlikely anyone will discover the existence of a foreign conviction unless it is disclosed by the person convicted. Individuals may not realise that a foreign conviction would need to be disclosed or may try to hide it.
Firms have an obligation under the new rules to ensure that their employees are aware of legal, ethical and regulatory obligations. It is implicit from the SDT’s comments that that obligation would include ensuring employees are aware of the need to disclose relevant information to the SRA.
The El Diwany case is a reminder that reporting requirements extend to information which may be considered irrelevant due to passage of time, jurisdiction or the fact that conduct is not directly connected to a solicitor’s practice. The SDT’s commentary clearly highlights that an individual would be expected to report serious misconduct found by a foreign court – even where the individual doesn’t believe the finding to be safe.
