Acting to stop harm: the FCA and Appointed Representatives
On 3 January 2017, Alastair Main (‘the Respondent’) was convicted of committing two offences against a woman referred to as ‘OB’ during a Christmas Party at the London Rowing Club. He was charged with one count of sexual assault and one count of racially aggravated assault by beating. It was alleged that the Respondent lifted up OB’s skirt and repeatedly slapped her bottom in a sexual way. OB had not consented to the touching and the Respondent ‘did not reasonably believe that she was consenting.’ During the assault, the Respondent also called OB an ‘Australian Slut’ and poured beer over her.
As a result, a Community Order was made on 26 January 2017 under which the Respondent was required to carry out 200 hours of unpaid Community work within 12 months. A Restraining Order was issued against the Respondent, prohibiting him from making any contact with OB, whether direct or indirect, and from entering OB’s residence or place of work. The Respondent was also placed on the Sex Offenders Register for 5 years and required to fulfil the notification requirements of the Sexual Offences Act 2003 during this time.
On 2 June 2017, the Respondent’s conduct was referred to the Solicitors Disciplinary Tribunal.
The Solicitors Regulation Authority (‘the Applicant’) alleged that the Respondent had failed to uphold the rule of law and proper administration of justice, failed to act with integrity and failed to conduct himself in a way that maintains the public’s trust in him and in the legal profession. Therefore, he had failed to adhere to the SRA Code of Conduct 2011 by breaching Principles 1, 2 and 6 respectively.
In order to be successful, it was necessary for the Applicant to prove the allegations beyond a reasonable doubt. It is important to note that the Respondent did not contest the facts on which his convictions were based and admitted to breaching Principles 2 and 6 of the SRA Principles. However, he argued that his actions had not breached Principle 1. Whether his behaviour and subsequent convictions had breached his duty to uphold the rule of law and the proper administration of justice therefore became the key point of dispute.
The Applicant argued that while not all criminal behaviour will constitute a breach of the duty outlined within Principle 1, the racially aggravated and sexual nature of the Respondent’s actions were sufficiently serious to amount to a clear breach of the Principle. The Respondent challenged this by distinguishing between committing a breach of the law and demonstrating a failure to uphold the law and the proper administration of justice, arguing that the obligations under Principle 1 do not include the former. That the wording in Principle 1 does not explicitly refer to breaching the law was noted by the Tribunal. Interestingly, this suggests that an individual can uphold the law while breaking it.
The Tribunal considered that the relationship between the conduct in question and the Respondent’s duty to the court was not as clear compared to if, for example, he had knowingly submitted a false witness statement to the Court. This issue is addressed within the Solicitors Handbook 2017 which emphasises that ‘upholding the rule of law is not the same as upholding the law or complying with the law.’ The duty imposed by Principle 1 is outlined as one that ‘could be said to equate to a duty to the court’ but only a ‘specific duty and one of the ‘professional principles’ set out in the Legal Services Act 2007. The Act defines these principles as imposing a duty to ‘act with independence in the interests of justice.’ Consequently, in theory, a solicitor may break the law while still maintaining an ability to progress the administration of justice in a professional capacity. However, the Applicant directed the Tribunal’s attention to paragraph 5 of the SRA Handbook which states that ‘Principles 1, 2 and 6 apply to you if you are a solicitor,’ even when the activities in question took place in a ‘private capacity.’
The Tribunal concluded that the duty imposed within Principle 1 could encompass actions and behaviour conducted outside of a professional context. Therefore, the Respondent’s actions at the Christmas Party were within the scope of his duty to uphold the rule of law and the administration of justice. However, the Tribunal found that the Respondent’s conduct had not breached Principle 1.
The basis of the obligation outlined within Principle 1 was considered one which imposed a limited duty to the Court to uphold the rule of law and the administration of justice. It did not extend to an overarching requirement not to breach the law. During its deliberation, the Tribunal considered the findings in SRA v Olujinmi [11442-2015] and SRA v Dudley [12208-2013], agreeing with the distinction made between them. In Olujinmi the Respondent had refused to provide the police with a breath test and in Dudley the Respondent committed a drink-driving offence. The key point of distinction between these cases is that while the Respondent in Dudley broke the law, his actions did not constitute an infringement of his obligation to uphold the legal principles outlined in Principle 1. Olujinmi, however, knowingly obstructed the proper legal procedure from being implemented by refusing to provide a breath test.
In relation to whether the Respondent had failed to act with integrity, the Tribunal concluded that his conduct demonstrated a clear violation of Principle 2. The Tribunal also found that the Respondent had breached Principle 6 by failing to behave in a manner which upheld the public’s trust in him and in the legal profession.
The Tribunal imposed a 2 year suspension on the Respondent.
It has for some time been the subject of debate within those advising solicitors as to the true scope of Principle 1. The SRA has generally interpreted the Principle as being wide enough to apply to all laws whilst others (most notably the authors of the Solicitors Handbook referred to above) have taken a different and narrower view.
The Tribunal has come down in favour of the narrower interpretation which must on analysis be the correct view. There is a distinction between upholding the law and breaking the law. It seems that in this case, the emphasis was placed on the Respondent’s conduct after the assault had been carried out. The Respondent in Main can be distinguished from Olujinmi, as he complied with the necessary legal procedures after carrying out the criminal behaviour in question. He accepted the findings of the criminal trial and abided by the sanctions imposed. He even admitted to breaching Principles 2 and 6, although a submission to the contrary would have been in no way inconsistent with the prospect that he had abided by these principles as this is well within his legal rights. Further, at no point does it appear that the Respondent obstructed the proper administration of justice or attempted to prevent the rule of law from being imposed in a procedural sense.
Whilst it appears inconsistent that a solicitor would be considered capable of upholding the legal principles that they have severely undermined and violated through their own conduct, the answer is that the other Principles in the SRA Code deal with such conduct. While a breach of the law does not conflict with Principle 1, it does infringe Principles 2 and 6 as these address the implications of a solicitor’s character more directly. The example noted by the Tribunal in relation to a solicitor submitting false evidence to the Court can be seen to support this conclusion as it represents a fundamental disregard for the Court and the legal principles it upholds. Principle 1, it appears, can be considered compatible with a breach of the law provided that the solicitor adheres to the necessary legal procedures and framework in place after the criminal behaviour has been committed.
This blog was written by Simran Tatla, Legal Assistant in the Regulatory Team.
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