Professional conduct and proportionality: a fine balance

The words ‘proportionate’ and ‘proportionality’ are key ingredients in sanctions guidance.

The Solicitors Disciplinary Tribunal (SDT) states: "[The Tribunal’s] focus is to establish the seriousness of the misconduct and, from that, to determine a fair and proportionate sanction."

The Bar Tribunal and Adjudication Services (BTAS) says: "The guidance provides decision makers with a basis for considering what sanctions are appropriate in any given case and is intended to promote proportionality, consistency and transparency in sanctions."

CILEx Regulation states: "This document is intended to promote proportionality, consistency and transparency in decision-making."

The Solicitors Regulation Authority’s enforcement strategy says: "… the public and the profession have a right to expect that wrongdoing will be met by robust and proportionate sanctions, and that we as a regulator will enforce our standards or requirements evenly, consistently and fairly." (Aside to camera: ‘robust’ and ‘proportionate’ may not be natural life partners, but that’s a different opinion piece.)

The dictionary definition of proportionate gives us: "The quality of corresponding in size or amount to something else". Put another way – ‘let the punishment fit the crime'.

But the purpose of sanction in professional conduct cases is not primarily punitive, as we know from Lord Bingham in Bolton v The Law Society [1994] WLR 512 (always well worth a re-read).

Tribunals are concerned with public protection and maintaining the reputation of a profession under threat from its rotten apples; punishment is, almost, incidental.

In his indispensable Professional Conduct Casebook, Kenneth Hamer devotes a section to the application of proportionality to sanctions.

His commentary, drawn from the cases, states the principle as “weighing the interests of the public against those of the registrant” – aka the aforementioned ‘rotten apple’.

This is quite a task, not least because the interests of the public are, themselves, the very devil to weigh. Lockdown brought that message home, for which see anti-lockdown and anti-vax protests. The interests of the public are far from homogenous. That makes life interesting and, often, a challenge.

Weighing the ingredients, ensuring the flour, butter and chocolate chips are proportionate, will achieve Bake Off-worthy consistency. The twelve signature bakes will, theoretically, look and taste the same.

But as Bake Off viewers know, this isn’t how real life works. Performance on the day, the heat in the tent, the quality of the butter, Prue Leith’s taste for chocolate chips – each make a difference, regardless of the accuracy of the scales.

Must a solicitor always be struck off for dishonesty, in the public interest? And a doctor rarely erased for the same misconduct because public interest dictates the need to maximise the capital investment in their training? Is either approach truly proportionate or is real life more nuanced, like the ingredients in a successful showstopper?