B e f o r e :
| IN THE MATTER OF THE SOLICITORS ACT 1974 AND IN THE MATTER OF THE MASTER OF THE ROLLS (APPEALS AND APPLICATIONS) REGULATIONS 2001 AND IN THE MATTER OF:
|No 06 of 2006
|(1) CHRISTIAN JIDEOFO
|THE LAW SOCIETY
|No 01 of 2007
|(2) SUSAN MAIR EVANS
|THE SOLICITORS REGULATION AUTHORITY
|No 11 of 2007
|(3) MANA BEGUM
|THE SOLICITORS REGULATION AUTHORITY
Mr Richard Colbey (of counsel) for Ms Begum
Mr Iain Miller (Solicitor/Advocate of Bevan Brittan, London, EC4M 7RF) and Mr Mark Pardoe for the Respondents
Hearing date: 30 July 2007
Crown Copyright ©
Sir Anthony Clarke MR:
The statutory framework
"It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors. If I make no further reference to barristers it is because this appeal concerns a solicitor, and where a client's moneys have been misappropriated the complaint is inevitably made against a solicitor, since solicitors receive and handle clients' moneys and barristers do not.
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 than 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 has 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 the 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 but denied re-admission. If a member of the public sells his house, very often his largest asset, 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 weigh 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."
"It seems to me to be plain that the whole purpose of (section 47) is to enable jurisdiction to be exercised over those presently practising as solicitors. It is, as Sir Thomas Bingham MR pointed out in Bolton …, both in the public interest and in the interest of maintaining the reputation of the solicitors' profession, that this should be so and that appropriate standards should be maintained by those who practise as solicitors.
To this end, it seems to me that if, in the past, one who is now a solicitor has behaved in a way which is incompatible with such standards, it is, and should be open to the tribunal to say so and to control the circumstances in which, if at all, he or she should continue to practice in the future. It is entirely consonant with this purpose, that the tribunal should exercise jurisdiction over one who is a solicitor by reference to past behaviour, whatever his or her status at the time of that behaviour. The tribunal's jurisdiction over a person accused rests solely and entirely on the present status of an accused as a solicitor. Whether in a particular case past conduct is compatible with the accused continuing in practice will depend, plainly, on the nature of the conduct as proved before and assessed by the tribunal."
"… the disciplining of a registered dentist involves subtly different considerations from those which apply to an applicant for registration. That said, I have no doubt that the differences should not be allowed to give rise to the existence of a double standard in connection with those who are entitled to be in practice. The requirement that an applicant for registration be of 'good character' secures the need for the public to be protected by the maintenance of high standards and the high reputation of the profession which has to be served at the stage of an application for registration as well as in disciplinary proceedings. The protection of the public will not be served by the application of a different standard at erasure from that which is applied when considering registration."
It is, however, fair to add that Newman J accepted in the same paragraph that there may be subtly different considerations to take account of in applying the standard to a dentist as opposed to an applicant for registration, but the standard remains the same. I agree and to my mind the same considerations apply to solicitors.
i) that the test of character and suitability is a necessarily high test;
ii) that the character and suitability test is not concerned with 'punishment', 'reward' or 'redemption', but with whether there is a risk to the public or a risk that there may be damage to the reputation of the profession; and
iii) that no one has the right to be admitted as a solicitor and it is for the applicant to discharge the burden of satisfying the test of character and suitability.
"they emphasise the need to protect the reputation of the profession by expelling dishonest persons from it and emphasising that mitigation personal to the solicitor has little relevance . . .'
See his summary at  to .
"The purpose of the interview was to establish whether Ms Begum could continue as a student member and proceed to admission given her conviction for an offence involving dishonesty. On 24 September 2004, having pleaded guilty, Ms begum was convicted of 7 counts of theft and sentenced to 60 hours Community Service.
Ms Begum told me that when working at Dixons she used a credit note to the value of £500 to top up her mobile phone. She said she had not been thinking straight and had told no-one of the severe financial difficulties she was experiencing brought about by her involvement in an Employment Tribunal case. She did not disclose the conviction to her employer or to her family at first but they are all aware of it now. She said she did not realise she had to disclose to the Law Society but did so when advised by NACRO.
Ms Begum appreciates that what she did is not the type of conduct expected of a solicitor. She said she had learned the hard way and if she were to find herself again in financial difficulty she would turn to her family, friends and her employer for help.
I have no doubt that Ms Begum sincerely regrets her behaviour. I must, however, refuse the application in light of the nature of the offence and the fact that it was committed just over two years ago – being too short a period for Ms Begum to establish that she has adequately rehabilitated herself."
"Miss Begum has requested a review of the decision made by the Law Society adjudicator to revoke her student membership of the Law Society and refuse her application for admission. The reason for that decision was that Miss Begum had disclosed a conviction from September 2004 for offences of dishonesty. We have considered Miss Begum's application for a review, and she has taken us through her arguments that the decision was unduly harsh and that it was wrong to conclude that the period of rehabilitation of two years was too short a period. She also contends that there were exceptional circumstances which led to her committing the offences which led to the conviction, and that they were wholly out of character.
We have considered carefully all her arguments, but consider that the real issue in this case is whether, in accordance with the Law Society's character and suitability guidelines, there can be confidence that Miss Begum is honest and trustworthy. Unless there are exceptional circumstances there will not be confidence if an individual has convictions for the offences of dishonesty. Our main concern is that a period of only just over two years has elapsed since the date of conviction, and we consider that that is too short a period to enable there to be confidence that Miss Begum has rehabilitated herself. We have no doubt that Miss Begum is genuinely, extremely remorseful for the actions which led to her conviction, but we consider that the interests of the profession and the interests of protecting the reputation of the profession are such that the decision should remain that she be refused membership of the Law Society as a student and should not be allowed to proceed to admission."
i) Her offences were committed at a time of exceptional stress, when her employment as a trainee solicitor with Silvers had been terminated and she (and others) were engaged in proceedings before the Employment Tribunal arising out of that termination. She had very little money, had only managed to obtain part-time work and was unable to obtain financial assistance from her family. Her phone was essential to her ability to fight the Employment Tribunal action.
ii) Her remorse is sincere. She is and was ashamed of her conduct, so much so that she was unable to inform her husband about her acts until the matter came to the attention of the Law Society.
iii) She had to overcome considerable difficulties in qualifying as a solicitor. She came to England aged six from Bangladesh. She learned English outside the family home, since her father has only ever had unskilled manual work and her mother has not worked outside the home. She attained a good degree in law and passed the LPC at the first attempt despite there being no family background in higher education.
iv) Because of her background she has a great deal to offer both the legal profession and the public. It is in the best interests of both for more members of ethnic minorities to enter the profession. In addition, given her experience whilst a trainee she is able positively to contribute to the profession through her ability to serve the needs of members of the public from the Asian community, by (among other things) conducting immigration and matrimonial work, especially where instructions are received from Asian woman, and by doing social security work, again largely for the Asian community.
v) If doubts persist concerning her honesty, they can be met by appropriate conditions being placed upon her practising certificate.
i) While Ms Begum might have committed her offences during a stressful period in her life, those offences were for dishonesty, committed in breach of an employer's trust and committed on seven different occasions.
ii) She failed to disclose her convictions to the Law Society by answering the question whether she had ever been convicted in the negative when she must have known that the answer to that question was untrue. She thus further called her honesty into question. A solicitor must be a person of integrity, probity and trustworthiness; the profession is one which places its members in positions of trust, and does so in often stressful and difficult situations. Her convictions for dishonesty and failure properly to disclose those convictions call into question whether she can properly be said to have the requisite integrity and trustworthiness to be a solicitor.
iii) Ms Begum may well have overcome difficulties in seeking to qualify as a solicitor but her personal circumstances should be given little weight when contrasted with the need to protect the public and the reputation of the profession.
iv) It is neither the role of the regulator nor that of the Master of the Rolls to permit an individual to be admitted to the roll who is not of the requisite character and suitability. If an individual is not of the requisite character and suitability they cannot be admitted. It is impermissible to admit them and then place them under regulatory conditions.
"Firstly, I would like to begin by apologising to you with regards to my previous application form to join the Law Society, as did not declare my convictions through fear of being rejected, as being allowed to do the LPC means a great deal to me. I do not condone lying as am not one, which leads me to attempt to put right my previous application form, as that is the only way forward whether that might mean the outcome would entail me not being accepted within the Law Society.
I have been foolish with alcohol, as it appears to effect me quickly and is at the route of the convictions which I am deeply ashamed of and regret my past behaviour. When looking at the convictions I sometimes think they can't be mine but unfortunately they are. I am a hard working, dedicated individual who is respect by the people in my life, therefore I would be grateful of an opportunity to put the past behind and prove to myself that these stupid instances do not occur again that would jeopardise my career"
i) in October 1996, Ms Evans was convicted of driving a motor vehicle with excess alcohol, disqualified from driving for 18 months and fined £200;
ii) in September 1998, she received a caution for disorderly behaviour or using threatening, abusive or insulting words likely to cause harassment, alarm or distress and for destroying or damaging property of an unknown value;
iii) in October 2001, she was convicted of being drunk in a public place, fined and given a 12 month conditional discharge;
iv) in February 2002, she was again convicted of being drunk in a public place and fined £50;
v) in September 2002, she was convicted of failing to provide a specimen for analysis, disqualified from driving for 36 months and fined £200; and
vi) in January 2006, she was convicted of being drunk and disorderly and fined £75.
Miss Evans attended interview to determine her character and suitability for student membership of the Society due to having a series of convictions involving drinking and to not initially making disclosure of such convictions when completing form EN1. This was subsequently rectified when Miss Evans rang the Law Society but even then certain offences did not come to light until the full CRB trawl became available.
At interview Miss Evans appeared to be an articulate, pleasant and rounded individual who was remorseful for her actions. Miss Evans also clearly found the hearing to be an emotional event. However the discussions revealed (as do the convictions) that Miss Evans has an alter ego which emerges when she has taken alcohol. Hence not only is there a conviction for drink and drive, she also has convictions for drunk and disorderly behaviour which she admitted involved verbally abusing a policeman and scratching a police car. Whilst most of these convictions took place in the 1990s the latest was only in January of this year and in 2002 she was convicted of failing to provide a specimen of breath. . .
To add to an unfortunate situation Miss Evans did not disclose these matters on her application form despite a health warning on the form shat she was required to do so and that she did not have the benefit of the Rehabilitation of Offenders Act.
Miss Evans claim is that she is very susceptible to the effects of alcohol even in quite small quantities. She claims that she is not a regular or heavy drinker. She stated that she now works very hard to ensure that she does not exceed her own self imposed level of intake but occasionally this does happen with fateful consequences for her. She also stated that she cannot control her intake and that such incidents will not occur again. She did not declare the convictions on EN1 because she was ashamed.
I feel sympathy for Miss Evans for she clearly has an alter ego which emerges when she has taken alcohol. However my task is to place her situation in the context of the rules and consider whether she is a fit and proper person for student enrolment. Is she honest and trustworthy? Is there anything in her character which indicates that she is unwilling to comply with regulatory requirements or which might diminish the public's confidence in the profession. Is there anything which might cause harm to the public, profession or herself? Are there exceptional circumstances which explain such concerns?
In the case of Miss Evans I think that the answers to these questions are really self evident. Miss Evans' inability to control her drinking over a long period does bring into doubt her trustworthiness and her statement that this will not happen again. Her failure to declare on the form indicates an unwillingness to comply with regulatory requirements. Her convictions reveal that she can cause harm to the public and possibly pose a threat to herself or members of the profession.
I do not say that she is dependent on alcohol but there must be a concern whether this is the case. Nor that she has been untruthful with me although I find [it] surprising that Miss Evans in he submission seemed to think that she is able to control her intake of alcohol (when the facts appear otherwise) and that there is no problem underlying such a long sequence of events involving alcohol.
If Miss Evans wishes to be considered for admission then she will have to demonstrate conclusively that alcohol is not a feature of her life and that there is no risk of it becoming so. That may require drastic measures on her part such as abstinence and counselling. That is however outside my remit. All I can do for the present is to declare her an unfit person and refuse her application for student membership."
"On considering the schedule of evidence and taking account [of] the oral testimony of the applicant, I refuse the application for review. I have read the decision of the Adjudicator at first instance dated 8 September 2006. I do not intend to repeat the history of the matter and consider the findings to be accurate on the evidence contained within the papers and heard by me today. Indeed Miss Evans does not dispute the findings made. Her appeal is on the basis that she should be allowed to continue with the LPC as she has started it and by definition be admitted as a student member of the Law Society. This in my opinion is 'putting the cart before the horse'. The obligation on Miss Evans was to be granted student membership before enrolling on the LPC course. Her references recently produced are satisfactory, but no more than that as they merely attest to her as a person but not to her behaviour and criminal convictions. Since the refusal of her application, she has abstained from drink for 2 months: has attended 2 alcoholic anonymous meetings and has seen a student councillor. She is also undergoing in the future counselling with a specialist alcohol counsellor.
However, whilst her efforts are to be commended, it is too early to say whether they will have the desired effect. Given the serious nature of the offences and their number over the last 10 years, I find on the balance of probabilities at present that she is not a fit and proper person to be enrolled as a student member of the Law Society."
i) If the Law Society is not directed to issue a certificate of enrolment she will not be able to make a fresh application for enrolment until November 2007, pursuant to Regulation 6(5) of the 1990 Regulations. This would mean that she would be unable to commence an LPC until September 2008.
ii) The original decision, as she puts it, to refuse student membership was made based on the convictions and cautions she received, which arose out of alcohol abuse. She however attended an LPC for two months before the failure of her appeal before Mr Block. In addition, she has abstained from alcohol since September 2006 and continues to attend AA meetings and specialist counselling.
iii) She is deeply ashamed and remorseful of her actions and is determined to continue to abstain from alcohol in the future, which she recognises (and submits) was at the root of her previous behaviour.
iv) She relies on number of references from, among others, university tutors, the Glamorgan University LPC Course Director, and a Ms Worsley, who is a student counsellor.
i) Ms Evans has neither the requisite character nor the requisite suitability to be admitted as a solicitor, as set out in section 3(1)(b) of the 1974 Act and Regulations 6(1)(i) and 32(2) of the 1990 Regulations, by reason of her criminal record and her failure to disclose it on her application for student membership of the Law Society: see eg Bolton and Ofosuhene.
ii) Critically, Ms Evans' claim that she is continuing to abstain from alcohol is unsubstantiated and her criminal record demonstrates that the problems which arise from her drinking alcohol are longstanding and encompass long periods of time when no adverse consequences arose. In those circumstances her claim to now be fully rehabilitated after only short period of abstinence cannot be substantiated, at any rate not in the absence of independent evidence.
iii) Even if it could be established that her enrolment was in the public interest in the sense that there is no risk to the public, there remains a clear risk to the reputation of the profession if an applicant were considered to be of suitable character to be admitted when he or she not only has a number of convictions, but more importantly has failed to disclose them on application to the Society. At best, her failure to disclose them demonstrates unreliability on Ms Evans' part and at worst it demonstrates dishonest conduct.