SRA theory and practice mismatched
Susanna Heley is unsettled by the regulator’s approach to evidence in cases before Solicitors Disciplinary Tribunal
T he year 2019 was another year of significant change for the legal profession. The impact of many of the changes which came into effect on 25 November will only start to become apparent in 2020. By this time next year, we can expect to have a better appreciation of the approach which will be adopted by the Solicitors Disciplinary Tribunal (SDT) in relation to the shift to the civil standard of proof. We should also start to feel the economic and regulatory effects of alternate forms of practice – assuming, of course, such forms of practice are taken up by solicitors. One of the things I would hope to see as an emerging trend in 2020 and beyond is a closer correlation between the theory espoused by the Solicitors Regulation Authority (SRA) and the way in which it is put into practice. It is, for example, a particularly curious coincidence that the SRA appealed the SDT’s decision not to strike off Sovani James and two others on grounds that there were no exceptional circumstances justifying the lesser sanctions imposed by the SDT – while at the same time making an application to the Legal Services Board (LSB) in which it said: “Our current Suitability Test is very prescriptive. It restricts our discretion to treat each application on a case by case basis to consideration of ‘exceptional circumstances’. We want to be able to consider each application on a case by case basis, taking into account all of the individual circumstances.
This will align more closely with our wider approach to enforcement and decision making.” I hope I’m not alone in perceiving a mismatch here between theory and practice. It strikes me as extraordinary that the SRA could assert that its approach to enforcement would be more closely aligned to a suitability regime which itself abandoned the concept of exceptional circumstances and at the same time sought to narrow the circumstances which had been found by the SDT to be exceptional. One does wonder whether the court may have reached a different conclusion had it been made aware that the standards as to what the public expect in relation to admission to the profession had been the subject of express public consultation for the first time since the Court of Appeal’s often quoted case of Bolton v Law Society  EWCA Civ 32. What may have occurred if the court had realised that public policy, as put forward by the SRA following its consultation, no longer supported such a prescriptive and inflexible approach? What if the court had been made aware that the Master of the Rolls had held in 2007 that it would be irrational for there to be a difference between the test for being struck off and the test for admission to the profession? Reflecting on these issues, I was reminded of the case of Strachan v SRA  EWHC 1181 in which the SRA sought to prevent Selwyn Strachan from undertaking the Legal Practice Course (LPC) due to character and suitability issues, notwithstanding that as a matter of policy it was abolishing the requirement for student enrolment in any event.
The circumstances of that case were highly unusual. Strachan sought to undertake the LPC for the purposes of meeting qualification requirements in his home country and had no intention of practising in England and Wales. The facts in that case were extreme in that Strachan had been convicted of murder in a trial which had been widely condemned by international organisations. But it was the stark mismatch between policy and practice which left a lasting impression on me. More recently, I have been unsettled by (hopefully isolated) incidents of a lack of robustness in the SRA’s approach to evidence before the SDT. The recent case of SRA v Puri is a stark example of a case in which the SRA put forward evidence which had not been properly tested and was criticised and roundly rejected by the SDT. The SRA’s witnesses were found to have provided false evidence which undermined large swathes of the SRA’s case. We can’t know from the SDT findings what steps the SRA had taken to test the evidence but one can imagine that the SRA might have had something to say to a solicitor who had permitted evidence which was so thoroughly discredited to be adduced in any other arena. Perhaps more worryingly, issues of this nature have not been confined to third party witnesses.
The case of SRA v Davies included serious criticism of an SRA forensic investigation officer and his approach to the evidence. Rarely has the SDT so clearly expressed its concern as to the validity of evidence produced internally by the SRA. It must be of some concern that in its role as prosecutor, the SRA can be quick to allege dishonesty where a mistake is made in a document bearing a statement of truth. Yet in 2019, it found itself in the position of having produced evidence which does not withstand detailed scrutiny on multiple occasions. In responding to the SDT’s proposal to adopt the civil standard of proof, many pointed to the SRA’s high ‘conviction’ rate at the SDT as evidence that change was not required.
Given the sheer number of times a particular case has to be scrutinised at different levels in the SRA before it gets near the SDT, a high conviction rate is hardly surprising. It is of concern though that allegations such as those so roundly criticised by the SDT in the above cases made it through to the SDT in the first place. One hopes that lessons are learned despite the fact that cases which rely on poor evidence of dishonesty are highly likely to result in some lesser findings being made and will be counted as successful prosecutions by the SRA. It is well established that an allegation of dishonesty is the most serious situation a solicitor can face. Disciplinary proceedings are extraordinarily stressful for those involved and the prospect of losing one’s career on the basis of alleged dishonesty is terrifying. Unjustified allegations add to these stresses a sense of injustice and unfairness.
Any regular readers will be aware of my view that the system as a whole is stacked against individual solicitors due to the hostile costs regime, lack of any mandatory insurance for defence costs in the SDT and the inbuilt, and an acknowledged bias in favour of protecting the reputation of the solicitors’ profession at the expense of the fortunes of an individual. There are public policy reasons supporting the way in which the regime has developed but the world is changing as evidenced by the significant changes brought to us in 2019. In reflecting on the issues which have been significant in 2019 and on the changes that we expect to see in 2020, one has to hope that lessons will be learned, that greater care will be taken in assessing the strength of allegations of dishonesty before they are put before the SDT and that those responsible for setting the policy of the SRA ensure that the message they wish to promote as an organisation is consistent and clear in both policy and practice.