Knowledge and approval - When is a will suspicious?
Last month Solicitor Mohammed Abid (MA) avoided a strike-off, instead being suspended for six months for lending his mobile to a suspect in a police cell and then denying his actions to the police. The sanction demonstrates how in some cases admissions can lead to a more favourable outcome.
To set the scene, MA was 27 years old and eight months qualified when he attended a private consultation in a police custody suite. His client, DD, was a 58-year-old with 25 previous convictions who was under arrest for assaulting a visitor to his property and, amongst other injuries, breaking his eye socket. MA allowed DD to use his phone during the consultation on the understanding that DD would make a call to get his National Insurance number in order to complete a form. DD instead called his partner (PW), a potential witness in the case, and warned her not to “tell them anything”. At the time of the call, PW was at the station finalising her witness statement with the police. As a result of the call, she did not sign her statement. The police officer in attendance with PW overheard the call and reported it to the custody sergeant. MA was challenged about this by the police and initially denied his actions. When pressed and told that his phone could be examined to reveal who the last caller was, MA admitted that he had allowed DD to use it.
You may have some sympathy for the junior solicitor who was described by his representative as “a rabbit in the headlights”. That said, his actions in not intervening when the call took an unexpected turn, and then denying his actions when questioned by the police, were clearly very serious. Indeed, the facts point towards a finding of dishonesty and a strike-off order. However, MA escaped with a period of suspension after the allegation of dishonesty was dropped by the SRA.
It was initially alleged that MA’s actions in denying that DD had used his phone were dishonest. This is perhaps unsurprising. The question of what constitutes dishonesty in regulatory proceedings has been the subject of much debate (see our previous blogs: A useful shorthand: integrity in healthcare regulation Wingate and Evans v Solicitors Regulation Authority; SRA v Malins  EWCA Civ 366 and Supreme Court overrules the Ghosh test - The Implications for Professional Disciplinary Proceedings), but the facts in this case seem to satisfy the Ivey v Genting test. They are this: when asked by a police officer whether he had afforded DD the use of his phone, “Mr Abid looked shocked and animated stating that he had personally made a call to his office…I repeated to Mr Abid that this was a very serious matter and that I wanted him to be honest with me. He shook his head denying this was the case…”
Despite this appearing to satisfy the relevant legal test, the allegation of dishonesty was withdrawn at the outset of the hearing on the basis of MA admitting the other allegations. It was accepted on behalf of the SRA that his denial to the police was momentary, taking the form of one verbal denial and one shake of the head. MA admitted his actions when he was pressed and it ultimately caused no harm. The SRA’s representative therefore decided it was not in the public interest to proceed with the contested allegation of dishonesty when all other allegations were admitted. This approach perhaps also recognises that the actions were at the lower end of the scale for dishonesty.
There was a finding of lack of integrity, as the Tribunal found “the provision of the mobile phone by the respondent demonstrated that he was not adhering to the ethical standards of the profession set out in the case of Wingate and Evans v SRA, SRA v Malins regarding the meaning of lack of integrity”. While this is clearly a serious finding, resulting in a serious sanction, had the allegation of dishonesty been pursued and found proved, MA may have expected to have been struck off the roll of solicitors. In this case, his actions in admitting the other allegations on the morning of the hearing (despite previous denials) may have made all the difference for him.
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