Kingsley Napley Spotlight Series

Post-Beckwith – where to now for sexual misconduct cases?

20 January 2021

In the two years preceding Ryan Beckwith’s appeal to the High Court, the SRA pursued a handful of other sexual misconduct cases before the Solicitors Disciplinary Tribunal (Tribunal). These cases are varied and fact-specific and include sexual misconduct in and relating to the workplace and conduct outside of work.

With the outcome of the Beckwith High Court appeal now known and, more importantly, findings in that judgment leaving a huge question mark over the longstanding and far reaching concept of principles-based regulation, it seems that we may see a change in both the approach the SRA has to adopt when bringing cases involving allegations of sexual misconduct before the Tribunal and also in how these cases are then considered and determined by the Tribunal . This is especially so given the SRA has confirmed that it will not be appealing the decision. This change in approach is likely to be twofold: first, in terms of  the way in which the SRA presents its overall case, and second, in respect of how the underlying conduct is alleged and then specifically hooked to relevant paragraphs within the SRA Code of Conduct or other relevant rules or regulations within the Standards and Regulations.  

We will now take a look back at the most recent sexual misconduct cases determined by the Tribunal to consider how they were brought by the SRA, before turning to consider what might have to change given the outcome of this appeal.

In each of the following cases, the SRA pursued allegations involving conduct which engaged the former Principle 2 (act with integrity) and Principle 6 (behave in a way that maintains the trust the public places in you and in the provision of legal services) of the 2011 SRA Handbook. In the majority of these cases, by way of final outcome, the Tribunal imposed a fine against the individual solicitor.

Scott[1]

In August 2019, the Tribunal heard proceedings brought by the SRA against Mr Gerard John Scott.  Mr Scott faced allegations that on two separate occasions he inappropriately/unwantedly touched Person A and sent her inappropriate/unwanted text messages on each occasion.  He later accepted a police caution for sending malicious communications under section 127 of the Communications Act 2003. 

Before the Tribunal, Mr Scott admitted each allegation and confirmed that he was no longer a practising solicitor and had no intention of returning to the profession. 

A key aspect of the case was that Person A was a female trainee solicitor and was a member of staff who worked directly with and was supervised by Mr Scott at the time of the inappropriate/unwanted conduct. In her witness statement to the Tribunal, Person A described Mr Scott’s conduct following the first incident as having deteriorated towards her such that he would boss her around and undermine her at work. 

The Tribunal was satisfied that in respect of the conduct - which included the police caution - Mr Scott had breached Principles 2 and 6 of the 2011 SRA Principles. Further, the Tribunal found that Mr Scott was:

clearly in a position of authority and trust as Person A’s supervisor.  Even though the Tribunal found that the Respondent had been disinhibited by alcohol, it was satisfied that the Respondent was directly responsible for his behaviour.  Many solicitors operated under very stressful circumstances or under medication and did not behave in the way [Mr Scott] had.” [See paragraph 68]

In reaching its decision to impose an 18 month suspension, the Tribunal took into account the aggravating and mitigating features of Mr Scott’s conduct, the former of which included the harm he had caused to Person A, the existence of the police caution and the inherent imbalance of power in their working relationship, with Person A being a trainee and Mr Scott being her then supervisor. 

 

Beckwith[2]
 

The proceedings brought by the SRA against Ryan Beckwith were heard from 30 September to 10 October 2019.  The allegations concerning Mr Beckwith and his conduct with Person A, for whom he was the Appraisal Partner, were upheld by the Tribunal and a fine of £35,000 plus a costs order of £200,000 was made against Mr Beckwith. 

The SRA alleged that following an initial incident which occurred at a celebratory event organised by the firm in May 2016, in kissing or attempting to kiss Person A, Beckwith had breached Principles 2 and 6 of the SRA Principles 2011 on the basis that, amongst other things, he: (i) was in a position of seniority and/or authority over Person A and was Person A’s supervising partner and appraisal partner; (ii)  knew or ought to have known that his conduct was an abuse of his position of seniority or authority and/or was inappropriate; and (iii) knew or ought to have known that Person A had given no indication that such conduct was wanted. 

The SRA also alleged that in July 2016, Beckwith initiated and/or engaged in sexual activity with Person A and in doing so, breached Principles 2 and 6 on the basis that again, amongst other things, he: (i) was in a position of seniority and/or authority over Person A in that he was a partner at the firm and was Person A’s supervising partner and appraisal partner; (ii) knew or ought to have known that Person A was heavily intoxicated to the extent that she was vulnerable and/or had an impaired ability to make decisions; and (iii) knew or ought to have known that his conduct was an abuse of his position of seniority or authority and/or was inappropriate.

The conduct on the second occasion was clearly more serious, although we note that the SRA’s formulation of the allegation was such that it in no way directly pleaded that there had been a lack of consent with regard to the sexual activity which was alleged to have taken place.  Whether this was the correct approach by the SRA and whether adopting this revised approach would have led to a different outcome continues to divide opinion.

The Tribunal did not find allegations relating to the May 2016 incident proven as it considered that it could not prefer the evidence of Person A over that of Mr Beckwith or vice versa.

The Tribunal did, however, make a number of findings of fact in relation to Mr Beckwith’s conduct in respect of the July 2016 incident, including that:

  • he was in a position of seniority and/or authority over Person A;
  • he knew that Person A was heavily intoxicated and that her judgement and decision making ability was impaired, but not that she was vulnerable and requiring special care, support or protection;
  • he knew he had not been allowed into Person A’s home with a view to sexual activity taking place; and
  • his conduct, in engaging in sexual activity with Person A, was inappropriate.

However, in respect of whether he knew or ought to have known that his conduct was an abuse of his position of seniority or authority and/or inappropriate, the Tribunal noted that during cross-examination of him, Counsel for the SRA specifically stated that it was not suggested that Mr Beckwith had used his authority over Person A to convince or induce her to engage in sexual activity. Counsel for the SRA also specifically did not suggest that Mr Beckwith had abused his authority or manipulated Person A by abusing his authority. It was also not Person A’s evidence that she felt obliged to remain in the pub with him as he was her boss, or that she had continued to drink as he was buying drinks for her as her boss. Nor was it her evidence that the sexual activity that had taken place was by virtue of that fact that he was her boss. In the light of all of that, the Tribunal considered that the allegation that the Respondent’s conduct was an abuse of his position of seniority or authority was not sustainable.

In respect of the question of consent, and in particular, the lack of this being alleged by the SRA, the Tribunal also noted the following at paragraph 25.176.2 of the judgment:

“The Tribunal found that it was for the Applicant to put its case on the basis that it deemed appropriate. The Tribunal would assess the evidence that it heard, and make a determination as to whether the Respondent’s conduct was in breach of his duties. It was not for the Tribunal to consider matters that had not been alleged; to do so would be improper. Accordingly, the Tribunal did not find that a failure to raise consent as an issue in this matter meant that it was unable to consider whether the Respondent’s conduct was in breach of the Principles as alleged.”

When setting out its decision making in respect of Principles 2 and 6, the Tribunal then noted:

“that the Respondent’s conduct affected not only his personal reputation, but the reputation of the profession and thus was a matter that ought to bear the scrutiny of the regulator.  In addition, the Tribunal found that whilst the subject matter and the particular circumstances of these proceedings was novel, the application of Principles 2 and 6 to a solicitor’s private life was not.  Accordingly, the Tribunal found that it was proper to assess whether or not the Respondent’s conduct was in breach of the Principles as alleged.” (paragraph 25.189)

As we know, Beckwith appealed this decision and the Tribunal’s decision has been overturned by the High Court. The Tribunal will now need to reconsider the matter afresh.

 

Senior[3]
 

The proceedings brought by the SRA against Gary Senior and others were heard in December 2019 and April and May 2020. The allegations related to Mr Senior’s conduct – whilst he was Managing Partner of Baker McKenzie London in 2012 - following a university recruitment event and it was alleged that he was and knew himself to be in a position of authority and responsibility over her. 

The conduct included that he asked Person A to remain behind in his hotel room in the early hours of the morning, told her he was attracted to her, attempted to embrace and kiss her and persisted with that conduct when Person A indicated it was not appropriate. 

It was then alleged that Mr Senior had sought to improperly influence the internal investigation into his conduct undertaken by the firm and the associated outcome of that investigation.

In making its findings, the Tribunal noted at paragraph 32.23, that:

[Mr Senior] was clearly in a position of authority and responsibility over Person A.  [Mr Senior] accepted that he had caused Person A to remain back in his hotel room.  [Mr Senior] had denied asking her to do so in an “authoritative tone”, but as outlined above, this was an exchange between a Managing Partner and a junior fee earner and the Tribunal found that the authority came from that disparity in seniority, regardless of the tone that may have been adopted by [Mr Senior].”

Further, at 32.37.4:

“The Tribunal had found that this conduct was a serious abuse of position on the part of [Mr Senior].  As the Managing Partner he should never have put Person A in the position of being alone with him in his hotel room in the first place.  The Tribunal considered that integrity must include how a solicitor deals with his/her colleagues and have regard to the disparity in their respectively roles and seniority.”

Accordingly breaches of Principles 2 and 6 were found in respect of both the sexual misconduct allegations and the allegations relating to interference with the firm’s investigation. The Tribunal imposed a fine of £55,000 alongside a costs order of £48,000 which had been agreed between the SRA and Mr Senior before proceedings commenced.

 

Critchlow[4]
 

In July 2020, the Tribunal heard proceedings brought by the SRA against Mr Geoffrey Critchlow. Mr Critchlow faced allegations that he acted towards Person A, a paralegal at his firm, in a manner which was inappropriate. It was alleged that while at a wine bar, he touched her leg and/or rubbed her back and/or kissed the back of her neck and/or rested his head on her shoulder and/or touched her bottom when he ought to have known such conduct was not wanted or invited.  At the time of this alleged conduct, Mr Critchlow was the Senior Partner and sole owner of his law firm. He was also the Compliance Office for Legal Practice (COLP).

Such conduct was alleged to breach Principle 2 and/or Principle 6 of the SRA Principles 2011.

Mr Critchlow had been at a long lunch before going on to a wine bar.  He invited other members of the firm to join him there, including Person A, who was a new paralegal at the firm.

Following the incident, the firm’s HR team investigated, taking statements and interviewing among others, Mr Critchlow and Person A.  A further meeting was then held during which Mr Critchlow apologised to Person A and it was agreed that she would work for Partner E, the firm would pay for her to obtain employment advice and she would see how she felt going forward.  Person A subsequently left the firm entering into a settlement agreement where she was paid £13,000.

Mr Critchlow self-reported his conduct to the SRA and subsequently admitted the allegation which was the subject of minor amendments at the final hearing. 

In finding the allegations proved, the Tribunal noted at paragraph 23.8 that:

“…[Mr Critchlow]’s conduct amounted to a breach of Principle 6, the requirement to behave in a way that maintained public confidence in the Respondent and the provision of legal services.  Principle 2 required a solicitor to act with integrity.  [Mr Critchlow] was the senior partner and owner of the firm.  Person A was a newly joined paralegal under contract with the firm.  She joined the firm expecting to work her short term contract instead her stay was brief.  The imbalance of power between [Mr Critchlow] and Person A was clear and the Tribunal found proved that in acting as he did the Respondent failed to act with integrity in breach of Principle 2.  The Tribunal found the amended allegation 1 proved on the evidence to the required standard indeed it was admitted.”

In imposing its sanction the Tribunal noted at paragraph 40 that while Mr Critchlow had not appeared before the Tribunal in his 30 years of practice and that his character witnesses spoke of his conduct being out of character, that:

…his behaviour was unacceptable in any circumstances and the Tribunal had considerable sympathy for Person A who must have been appalled and upset by his behaviour.  The Tribunal considered the appropriate sanction.  Clearly this was too serious for no order or a reprimand because of the lack of integrity shown by the Respondent while in a senior position.  Taking all these points into account the Tribunal found that the misconduct feel into the category of more serious and that a fine at Level 3 was appropriate and ordered that [Mr Critchlow] do pay a fine of £10,000.

A costs order of £8,000 was also imposed.

 

Khosla[5]

The proceedings brought by the SRA against Ravi Khosla were heard before the Tribunal on 6 September 2020.  The allegations related to Mr Khosla having been convicted of one count of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and having been sentenced to a Community Sentence including unpaid work of 120 hours, costs of £300 and a Victim Surcharge of £85.

The underlying conduct related to Mr Khosla having sexually assaulted an 18 year old female, who was up to that point previously unknown to him, by putting his hands on her hips and then her bottom, pulling her towards him and then forcefully kissing her with an open mouth. 

Originally at police interview, Mr Khosla denied the sexual assault stating that the conduct must have been consensual but he was later charged with sexual assault and convicted. In respect of the regulatory investigation, Mr Khosla admitted the conduct in question and the Tribunal therefore primarily focused on mitigation and sanction in light of the admissions made.

In considering the sanction to impose for breaches of Principles 2 and 6 of the 2011 SRA Handbook, the Tribunal noted at paragraph 38:

“With regards to the Respondent’s culpability, the Tribunal considered that his motivation in acting in the way that he did on that night of 31 December 2017 was sexual gratification.  However, the Tribunal accept that his actions were spontaneous and clouded by his unusual alcohol consumption.  He was solely responsible for his actions and the Tribunal determined that a man of his age, a husband, a father and a solicitor of significant experience ought to have known better.  The Tribunal concluded that the Respondent’s culpability was high.”

Given Mr Khosla’s admissions, the Tribunal found the allegation proven and imposed a fine of £17,500 on the basis that the Tribunal did not consider the Respondent to pose a risk to the public and there was a minimal, if any, risk of repetition.  A costs order of £1,900 was also imposed.

 

Charkham[6]

The proceedings brought by the SRA against Samuel Maurice Charkham were heard before the Tribunal in October 2020.

Mr Charkham was a partner at a law firm at the time the alleged incidents took place.  In terms of the underlying conduct, it was alleged that Mr Charkham had:

  1. told a racially abusive joke at a social event organised by his firm;
  2. acted towards Person A (a secretary at the Firm) in a manner which was inappropriate/unwanted in that he moved towards Person A wearing a white A4 envelope on his head and used words to the effect of “I’ve joined the Ku Klux Klan”;
  3. on more than one occasion between 2014 and 2017, touched Person A’s bottom; and
  4. on 22 February 2018, touched Person B’s (an Accounts Manager at the Firm) bottom.

In respect of the alleged racist conduct, the Tribunal found that Mr Charkham’s conduct breached Principles 2 and 9 of the 2011 SRA Handbook. Furthermore, in respect of the conduct towards Persons A and B, the Tribunal found that Mr Charkham’s conduct breached Principles 2 and 6 of the 2011 SRA Handbook.  The Tribunal noted in respect of the Principle 2 breach:

“…[Mr Charkham] as a Partner, was and must have been well aware of the requirement to act appropriately towards colleagues at all times, and particularly as to his responsibility, as a Partner, to behave appropriately to people in the Firm who, even if not managed by him, were junior to him in the organisation of the Firm and so may have felt constrained as to how they could respond to such conduct.”

In finding each of the allegations proven, the Tribunal imposed a fine of £30,000 and imposed a costs order of £21,000.

 

What are the similarities and differences?

In the Scott, Senior and Charkham cases, the common theme that emerges from the Tribunal findings of a breach of Principles 2 and 6 is not just an inherent imbalance of power and a misuse of authority but also an abuse of position by a senior and an authoritative figure over a more junior colleague in respect of conduct that is very much linked to the workplace. Additionally, in the case of Critchlow, it shares the theme of findings of a breach of Principles 2 and 6, but solely in relation to there being an inherent imbalance of power.  In that respect, it is understandable that breaches of former Principles 2 and 6 were cited by the SRA and found proven by the Tribunal, particularly in Scott where a police caution was also imposed.

The cases of Khosla and indeed, Beckwith, sit apart from the rest and this is reflected in where the outcomes land – albeit one at first instance and the other on appeal. When we start to look more closely at why this might be, we always come back to the point that it is the fact-specific nature of such cases and that cases turn, quite obviously, on the facts presented and the allegations pleaded.

Taking Khosla first, despite there still being a finding of a lack of integrity and a Principle 6 breach, it seems more than plausible that a lesser regulatory sanction was imposed on the basis that the conduct happened firmly outside of practice and that the police conviction already achieved the desired punitive effect. While it is understandable – given the nature of the assault and the resulting conviction - that the Tribunal still found breaches of Principles 2 and 6, it is perhaps easier to see how this case resulted in a lower fine, particularly when the Tribunal did not consider him to pose an ongoing risk to the public and that there was only a minimal risk of repetition. 

And the position differs again with Beckwith. While the conduct is sufficiently linked to the workplace to fall within the regulator’s remit and Mr Beckwith admitted that he was in a position of seniority and/or authority over Person A and his conduct was found to be inappropriate, crucially, no finding was made by the Tribunal that his conduct was an abuse of his position of seniority or authority. This may be because in Critchlow and Senior the imbalance of power was so great that the point was obvious and required no evidence.  Beckwith is less clear because although he was more senior (and a partner) the seniority gap was smaller and the age gap was also less.  It therefore also needed some cogent evidence of abuse of power which the SRA did not provide in setting out its case. 

So, while this still led the Tribunal to find that Principles 2 and 6 had been breached, leading to a financial penalty, this as we know, was not something the High Court agreed with.  On this point, the High Court said the Tribunal had been wrong to find that Mr Beckwith had failed to act with integrity, on the basis that the requirement to act with integrity obliged him not to act so as to take unfair advantage of ‘Person A’ by reason of his professional status – in other words, an abuse of his position. According to the High Court, “on the findings made by the Tribunal, that had not happened.”  

So what does the High Court’s decision mean for any cases of this nature that the SRA brings to the Tribunal in the future?

The first blog of this series authored by our colleague Iain Miller details the Court’s interpretation of the former Principles 2 and 6 and explains why this analysis is problematic given the complex nature of the underpinning regulatory framework in place for the regulation of solicitors. This is particularly highlighted by the Court’s insistence in the judgment that the SRA Principles in themselves cannot be overarching in the sense of being all-pervasive beyond the Code or beyond the specific content of the 2011 SRA Handbook, now to be read as the Standards and Regulations, in relation to future cases.  

This means that based on the Court’s analysis in Beckwith, you may no longer be able to plead a breach of an SRA Principle without also citing the underpinning breach of a paragraph in the Code of Conduct or a specific provision in the SRA Accounts Rules, to give another example.  Given how the new Standards and Regulations are drafted, this will prove almost impossible to achieve beyond seeking, rather uncomfortably, to try and rely upon the drafting of certain provisions which were clearly drafted with an altogether different purpose in mind. The obvious example here which would have to be uncomfortably shoehorned to support such cases in the future is paragraph 1.2 of the Code for Solicitors, RELs and RFLs which states that “you do not abuse your position by taking unfair advantage of clients or others”. And the glaringly obvious lack of any specific provision one would plead in relation to a criminal conviction highlights the flaws in the Court’s rationale.  And the Court’s rationale is perhaps further called into question by the comments made in Henneberry v The Law Society CO/1858/99 where the Divisional Court said:

“It is…ordinarily open to professional disciplinary tribunals to apply sanctions for professional misconduct generally, regardless of whether it is conduct singled out for mention in the rules.  Were it otherwise[,] professional people might be permitted to conduct themselves in plainly deplorable ways without any disciplinary control.”  Our emphasis added.

 

Concluding remarks
Such an approach as adopted by the Court in Beckwith appears to be inherently problematic and goes beyond simply how the SRA will plead its cases in the future. This judgment, without question, has far-reaching consequences, many of which might not have been foreseen or have been within contemplation. For example, the Court’s interpretation of the Principles flies in the face of the underpinning statutory process in place in respect of alterations to regulatory arrangements followed by the oversight regulator, the Legal Services Board (LSB). And this is not just in relation to the SRA’s scheme but in relation to all other approved regulator’s schemes which have previously been through the LSB’s rule approval process. As we know, the LSB has backed principles based regulation with the built-in flexibility that it affords and this judgment could undoubtedly have far-reaching consequences in terms of overall regulatory policy.  Given its role, perhaps there is now work for the LSB to do in respect of raising awareness and improving wider understanding of the complexities of the extant legal services regulatory framework and also in highlighting the challenges the sector will now face when seeking to take regulatory action in light of this judgment.

Given that we now know that the SRA will not be appealing this decision, it is clear that many legal services regulators will now need to adopt a different approach when formulating their allegations which is likely to mean tying them to specific provisions within a Code of Conduct or other underpinning sets of rules or regulations, rather than simply citing overarching principles. It is also likely that the Tribunal will be more cautious when it comes to making findings in respect of what are now Principle 2 (act in a way that upholds public trust and confidence in the solicitor’s profession and in legal services provided by authorised persons) and Principle 5 (act with integrity) – and the same is likely to apply to other disciplinary panels.   

While the judgment rightly recognises that the boundaries between a solicitor’s private life and the practice of their profession are becoming increasingly blurred and regulators need to think long and hard as to their regulatory reach, this is by no means new thinking.  Given the challenges this judgment throws up, we are left wondering how long it will be before it is no longer relied upon as good law. And this might happen sooner if regulators ensure that they put forward the strongest and most focussed cases that they can and decision makers ensure that any finding of a lack of integrity is sufficiently supported by the factual matrix underpinning the conduct in question.

Further information

If you have any questions about the issues discussed in this article, please contact Jessica Clay or Sophie Bolzonello or a member of our regulatory team.

 

About the authors

Jessica is a senior associate with extensive experience specialising in legal services regulation. Jessica’s work in this sector focuses on advising her clients in relation to complying with regulatory obligations, better understanding the importance of legal ethics within regulation, regulatory investigations and public law matters, including reviewing regulatory frameworks and decision making processes.  Jessica is Deputy Editor of Cordery on Legal Services.

Sophie Bolzonello is an associate, Australian Qualified, in Kingsley Napley’s Regulatory department.  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.

 

Footnotes 


[1] SRA and Gerard John Scott, Case No. 11958-2019

[2] SRA and Ryan Beckwith, Case No. 11887-2018

[3] SRA and Gary Senior & Ors, Case No. 11976-2019

[4] SRA and Geoffrey Howard Julian Critchlow, Case No. 11940-2019

[5] SRA and Ravi Khosla, Case No. 12104-2020

[6] SRA and Samual Maurice Charkham, Case No. 12088-2020

 

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