"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
R. (on the application of Solicitors Regulation Authority) v Imran Queen's Bench Division (Administrative Court), 22 July 2015  EWHC 2572
As a mandatory principle which helps define the fundamental ethical and professional standards of those providing legal services, acting with honesty and integrity is something that the Solicitors Regulation Authority (SRA) advocates when dealing with dishonest conduct. Striking off seems the inevitable sanction for such conduct. However, perhaps surprisingly, in the case of R. (on the application of Solicitors Regulation Authority) v Imran Queen's Bench Division (Administrative Court), 22 July 2015, the SRA unsuccessfully challenged the Solicitors Disciplinary Tribunal’s (SDT) decision not to strike off a solicitor who had acted dishonestly.
While the appellant was a trainee solicitor, he dishonestly gave false details to the police in relation to a speeding offence. Following a police investigation during which he admitted that he had given false details, he was charged under Section 5 of the Perjury Act 1911 and sentenced to two months’ imprisonment. By the time of his conviction, he had qualified as a solicitor.
The appellant voluntarily notified the SRA, in line with his regulatory duties, and regulatory proceedings were initiated against him. The SDT acknowledged the severity of his misconduct and acknowledged that a finding of dishonesty would almost certainly lead to striking off, save for exceptional circumstances.
The SDT considered the appellant’s conviction and his mitigation, including his self-referral to the SRA. The SDT regarded his conduct to have been spontaneous, amounting to a ‘single episode in a very brief duration’ (being the day the appellant provided the false information). Also of significance was his role as the sole breadwinner for his family. This, coupled with the appellant’s maturity at the time of the offence, led the SDT to conclude that this case was ‘very particular and exceptional’. The appellant received a two year suspension order.
The SRA appealed the SDT’s decision, arguing that the SDT’s evaluation of the severity of the appellants offence was based upon an assessment that the appellant’s conduct was ‘spontaneous’. The Court acknowledged that the degree of culpability and dishonesty were important when considering protecting the reputation of the legal profession. However, the SDT had carefully reached this decision based on both the appellant’s submissions and supporting evidence. The Court corroborated the significance of the fact that the appellant’s conduct was spontaneous and occurred over a short period of time. The Court also stated that it was evident the SDT had acknowledged the nature of the appellant’s offence and had made specific reference to the appellant thwarting ‘the administration of justice’.
The SRA also argued that the factors of the appellant’s case were not ‘exceptional’ (an indication of its wish for the appellant to be struck off), but were factors routinely encountered in proceedings involving dishonesty. The Court disagreed with this argument, stating that instead of focusing on individual aspects of the case, it is important to ‘stand back’ from those factors in order to firstly focus on the conclusions reached on the dishonest act. Although the extent and impact of the dishonesty has greater weight, admissions and mitigating factors are relevant when deciding if the case is exceptional. The Court was satisfied that the SDT had placed the appellant’s dishonesty ‘at the heart’ of its decision, as to the culpability and the effect of his dishonesty on the reputation of the legal profession. The Court acknowledged that SDT’s view that the public would actually empathise with the appellant’s circumstances.
As such, the Court concluded that this was an exceptional case. The Court cited Salsbury v Law Society  EWCA Civ, stating that the SDT’s decision was not ‘clearly inappropriate’ as the SDT had considered the dishonesty, the impact of the appellant’s conduct and other mitigating factors. The Court also acknowledged the SDT’s experience in hearing such exceptional cases and its expertise in recognising when striking off is not the appropriate sanction. The appeal was dismissed.
A somewhat surprising decision, given the initial offence and dishonesty involved, however the decision demonstrates that dishonesty does not mean that striking off is inevitable if the factors of the case are considered ‘exceptional’. It also draws attention to the High Court’s appreciation for the expertise of the SDT in making such decisions.
For further information please contact Jodie Leshone.
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