FAQs : The SRA's early character and suitability assessment

What is the new (optional) early SRA character and suitability assessment all about?

Since the abolition of the category of student membership of the Law Society/SRA, prospective solicitors have not had the ability to have their character and suitability assessed by the SRA in advance of applying  for admission to the profession. This has meant that solicitors who are worried about something that they have done in the past have had to wait until making a full application to the SRA at the end of their training contract, risking refusal at a stage in their journey where they had already invested substantial time and money.

The replacement of the former SRA Suitability Test 2011 by the SRA Standards and Regulations in November 2019 saw the introduction of the new SRA Assessment of Character and Suitability Rules (‘Suitability Rules’). The Suitability Rules no longer require those starting their legal training to disclose character and suitability issues at the commencement of their training; instead assessment takes place at the end of the Period of Recognised Training (PRT). 

To help those who are concerned about issues, individuals may now apply for an early assessment of their character and suitability if they have any concerns that their past will impact the SRA’s assessment of registration as being compatible with its duties to ‘protect the public and the public interest and maintain public trust and confidence in the solicitors' profession and in legal services provided by authorised persons’.

Does the change in timing of the mandatory character and suitability assessment matter?

The impact of these changes will be felt most by those at the two extreme ends of the spectrum.  For those with any worrying issues in their past (convictions, cautions, Fixed Penalty Notices for Disorder (FPND) and the like) who also recognise that these may pose a hurdle to admission and are aware that they may seek an early character and suitability assessment, the change means that they can now check with the SRA at the earliest possible stage of their career whether they could be precluded from admission. There will be some solicitors to be however, at the other end of the spectrum, who are unaware that their history may present a problem and that the character and suitability check now comes at the end of their training, for whom the change in timing of the mandatory assessment of character and suitability, may cause serious issues in wasted time and money. Passing through both the education and training stages en route to qualification and then being refused admission on character and suitability grounds, may have devastating consequences personally and financially.

When can I apply for an early character and suitability assessment?

An application can be made in advance of a prospective solicitor starting the Common Professional Examination (CPE), the Legal Practice Course (LPC), or before their PRT.

How do I apply?

First you need to apply for screening with the SRA through your mySRA portal. The process involves identity and financial checks and requires the applicant to obtain a standard Disclosure and Barring Service (DBS) check.[1]

Once a screening certificate has been issued you can make your substantive application. Part 4 of the Suitability Rules provide details as to the documents that might usefully be submitted, depending on the type of declaration you are making. All cases are unique though and hence the supporting evidence will vary. We suggest that all applications will require the support of credible supporting statements from people of good standing who are aware of the indiscretion(s) and can attest to your character.  

What material do I need to provide in support of my application?

Applicants will need to prepare a detailed supporting letter or statement that discloses the indiscretion(s) and explains in full why it does not continue to negatively impact the applicant, and why, notwithstanding the matters declared, they nevertheless have the required suitability and character for admission. The statement will need to address any applicable aggravating and mitigating features of the conduct (see below). 

Crucially, applicants will need to consider if there is any evidence of remediation or rehabilitation that can be included. References are critical; individuals that can speak to the incident in question to put it in its proper context will likely play a critical role in assisting the SRA to understand what has happened and why.

The SRA may request any missing information as well as following up with third parties to check information that is submitted. Failure to submit any requested information on time is likely to result in the application being refused.

What sort of conduct is considered by the SRA?

The types of conduct the SRA considers in determining an individual’s character and suitability are broad and capture the following themes.

Criminal conduct including cautions and convictions for a range of offences including:

• for which an individual received a custodial or suspended sentence;
• dishonesty, fraud, perjury and/or bribery
• violent or sexual crimes
• obstructing the course of justice
• conduct demonstrating behaviour showing signs of discrimination towards others
• conduct associated with terrorism
• Integrity and independence related conduct such as dishonesty, violent conduct, threatening or harassing behaviour or discriminatory behaviour towards others
• Assessment offences at an educational establishment
• Financial conduct or events such as deliberately avoiding debts, dishonesty relating to financial management, bankruptcy, company/LLP/partnership of which you were are/were a manager or owner which ends in a winding up order or circumstances of insolvency; and
• Regulatory or disciplinary findings by another regulator or by the SRA on a previous occasion.

Applicants should consult the SRA Enforcement Strategy to gain a clearer insight into the sort of conduct that the SRA will be interested in.

What test is applied by the SRA in the early assessment?

The applicable test for the assessment of character and suitability is set out in the case of Jideofo and others -v- The Law Society [2007] EW MISC 3 and repeated in the Suitability Rules.[2]  The applicant bears the burden (on the balance of probabilities) of satisfying the SRA that he has the requisite character and suitability for admission. To do so, they must demonstrate that there is no risk to the public and no risk that public trust and confidence in the solicitors’ profession will be diminished through his admission, taking into account the conduct concerned.

The SRA will take into account any relevant aggravating and mitigating factors related to the matters in question, a non-exhaustive list of which appears in the regulations.

What are the potential outcomes of the early assessment?

The SRA could:

• declare that it is satisfied as to your character and suitability;
• declare that it is not satisfied as to your character and suitability;
• impose conditions on your authorisation or approval[3].  

Is the decision binding?

No. Regulation 5.2 of the Authorisation of Individuals Regulations makes clear that the SRA is not bound in any subsequent application for admission by any early assessment decisions made.  

It is important for applicants to know that they have an ‘ongoing obligation to tell the SRA promptly about anything that raises a question as to your character and suitability, or any change to information previously disclosed to the SRA in support of your application, after it has been made. This obligation continues once you have been admitted as a solicitor, registered as an REL or an RFL, or approved as a role holder.’[4]

Will the decision be published?

The SRA may publish decisions in accordance with the SRA’s guidance on publishing regulatory and disciplinary decisions, if it is in the public interest to do so. Due to the confidential nature of what is likely to be disclosed in these applications it is unlikely that that publication would follow.

Can I challenge an adverse early assessment decision?

Yes. A decision made for early assessment is subject to the review provisions set out in rule 3.2 of the SRA Application, Notice, Review and Appeals Rules and paragraph 7 of Annex 1 to those rules. An application for review must be made within 28 days of the decision being made or reasons for the decision being given (if later) and must explain the grounds of review and provide reasons and any evidence in support.

FURTHER INFORMATION

For further information on the issues raised in this blog post, please contact a member of our Regulatory team.

ABOUT THE AUTHORs

Julie is a partner in the Regulatory Team. She predominantly acts in the professional services sector, advising lawyers, accountants and built environment professionals on regulatory compliance, investigations, adjudication, enforcement and prosecutions.

Sophie specialises in advising regulated professionals on compliance, in investigations and in respect of enforcement action. She also advises regulators on policy, governance, prosecutions and litigation. 

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