SRA theory and practice mismatched

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 [1993] 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 [2014] 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.