QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JACK
| THE LAW SOCIETY
|- and -
|CLAIRE LOUISE WILSON
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
MR MICHAEL TOMLINSON (instructed by Aldridge and Brownlee) for the Respondent
Crown Copyright ©
Lord Justice Keene :
I will ask Mr. Justice Jack to give the first judgment
Mr Justice Jack :
"That you at Southampton in the County of Hampshire on the 31st day of March 2003, dishonestly with a view to gain for yourself or another or with intent to cause loss to another, falsified a document, namely a cheque requisition form for 85.15 pence by falsely purporting that you had attended an Immigration Tribunal at the Home Office in respect of Mr Al Tahaireh made or required for an accounting purpose."
"34. The Respondent expressed herself to be fully aware that there was every possibility that her dishonest actions would lead to the imposition of the ultimate sanction. Indeed, it is only in rare circumstances that the Tribunal would not impose a striking off order upon a solicitor who has been dishonest and who has been convicted of a criminal offence involving dishonesty.
35. In this case the Tribunal has given the Respondent credit for her early admissions. The Tribunal accepts the Respondent's explanation that she put in false claims for petrol expenses on six occasions to demonstrate to her employer that she had been attending interviews and Tribunals when she had not. The Tribunal also accepts that the Respondent had pointed out to her employer what with her large caseload she could not find time to make long trips and attend in such a way.
36. The Tribunal recognises that at the material time the Respondent was a young and relatively inexperienced in the solicitors' profession. It is said that the Respondent was recognised as having expertise in the field of asylum and immigration law, but it could not be said that she had a great deal of experience amassed over a period of time. The Tribunal is in no doubt that the Respondent was a competent and hardworking solicitor.
37. There was no suggestion that the Respondent had on any other occasion acted with anything other than the utmost honesty, openness and frankness. The Tribunal is able to accept that the Respondent took the foolish steps which she did in desperation whilst carrying the burden of a large caseload and being under pressure inappropriate to her level of experience. The Tribunal noted that the Magistrates considered it right to impose community service upon the Respondent and ordered her to pay costs in a relatively small sum. It was clear that the Magistrates did not consider the Respondent's shortcomings to be of the gravest nature.
38. The Tribunal accepted the Respondent's assurance that she had learned a salutary lesson. The Tribunal took into account the fact that the matter had been hanging over the Respondent's head for two and a half years, had caused difficulties with her health and she had suffered further by being aware of the effect that anxiety about the matter had had on her parents.
39. The Tribunal gave the Respondent credit for having tried to make the best of a bad situation, for taking employment in a firm of solicitors whilst being entirely frank about her own position and also for studying and taking the immigration advisors' examinations. Further, the Respondent had attended the Tribunal hearing and expressed her remorse to the Tribunal for which she has also been given credit.
40. In all the particular circumstances of this matter the Tribunal concluded that it could exceptionally not order that the Respondent be struck off the Roll. It was necessary however, to impose a serious sanction upon the Respondent that would interfere with her ability to practise in order to demonstrate to members of the public and other members of the solicitors' profession that behaviour such as that perpetrated by the Respondent would not be tolerated.
41. The Tribunal ordered that the Respondent be suspended from practice for one year. The Tribunal noted that an agreement as to the Applicant's costs to be met by the Respondent had been reached and included in its decision the order that the Respondent should pay the Applicant's costs in the agreed fixed sum of £2,250.00 inclusive."
"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe that one of suspension.
It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he had done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases that order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled by denied re-admission. If a member of the public sells his house, very often his largest asses, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weight in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
"In my judgment there is no escape from the conclusion that the public would undoubtedly be surprised and shocked to learn that a practicing member of the solicitors' profession had within a very recent period served a sentence of imprisonment for deliberate dishonestly. That would undermine the essential quality of trustworthiness on which the reputation and standing of the legal profession depends."
"Before examining the substance of these submissions, it is necessary to identify, briefly, the approach which this court should, as it seems to me, adopt in an appeal of this kind. The classic authority as to the approach of this court is Bolton v Law Society  1 WLR 512. (To a passage in the judgement of Sir Thomas Bingham (then Master of the Rolls), I will refer later in relation to the propriety or otherwise of striking off). As to the approach, in general, which this court should adopt, it is not contested to the contrary by Mr Williams, on behalf of the Law Society, that Mr Foster's submission, based in particular on Ghosh v General Medical Council  1 WLR 1915 and MacMahon v Council of the Law Society of Scotland SLR 36, is appropriate. That is to say, in dealing with an appeal of this kind, a greater flexibility is now appropriate than was suggested in Bolton which was decided before the coming in to force of the Human Rights Act. In Ghosh at 1923, Lord Millett, giving the judgment of the Privy Council, in an appeal under the Medical Act 1983 (but, for my part, it seems that the principle should be of equal application in relation to appeals by solicitors) said this:"The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not called makes it incumbent upon the appellant to demonstrate that some error has occurred in proceedings before the committee or in its decision, but this is true of most appellate processes.
It is true that the Board's powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past."
Lord Millett went on to refer to Evans v General Medical Council (unreported) and just above G said this:
"For these reasons the board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances. The counsel conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and an the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."
There is a passage to similar effecting the judgment of the Privy Council delivered by Lord Cooke of Thorndon in Preiss v General Dental Council  1 WLR 1926 at paragraph 27. In McMahon v The Council of the Law Society of Scotland Lord Gill (Lord Justice Clerk), giving the opinion of the court, having referred to Ghosh and Preiss said:
"…we must now apply a less rigorous test. We should simply look at the tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the tribunal and giving to their decision such weigh as we should think appropriate."
Then at paragraph 16 he went on:
"Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeal of this kind…."."
"While the orders of the Solicitors Disciplinary Tribunal sometimes have a punitive element, that is not in very many cases their primary purpose, which is the maintenance of the good name and public reputation of the solicitors' profession. It is for the Tribunal to make the primary judgment whether non-professional misbehaviour will adversely affect the public reputation of solicitors, and in making that judgment the Tribunal have, unlike their predecessor Committee, the benefit of a lay member whose function is to make sure that the view of an ordinary reasonably informed member of the public is taken fully into account"
Pope was concerned with misconduct outside the solicitor's profession, but in my view the point can be made equally in relation to the public's view of professional misconduct.
Lord Justice Keene :