Foreign Convistions

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.