England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE LTA 96/5914/D

(LORD TAYLOR CJ )

Royal Courts of Justice

Strand

London WC2

Friday, 15 November 1996

B e f o r e:

LORD JUSTICE LEGGATT

LORD JUSTICE HUTCHISON

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SHEPHERD

PLAINTIFF/APPLICANT

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THE LAW SOCIETY

DEFENDANT/RESPONDENT

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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The Applicant, Mr Shepherd appeared in person

MR T DUTTON (Instructed by Messrs Cartwrights Adams & Blade, Cardiff CF1 5VA) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Friday, 15 November 1996

J U D G M E N T

LORD JUSTICE LEGGATT: Lord Justice Hutchison will give the first judgment.

LORD JUSTICE HUTCHISON: The applicant, Mr Shepherd, seeks leave to appeal against the rejection by the Divisional Court on 27 February 1996 of his appeal against the findings and order of the Solicitors Disciplinary Tribunal dated 4 August when the charge against him that he had been found guilty of conduct unbefitting a solicitor in that he had been convicted of 15 offences of dishonesty and sentenced to 3 years' imprisonment in respect thereof had been found proved and he had been struck off.

Before the tribunal a certificate of conviction evidencing the convictions and sentence had been admitted without objection. There was no dispute that he had been so convicted and sentenced, and that he had served his sentence without appealing. The sole ground of appeal advanced related to the tribunal's refusal to allow Mr Shepherd to adduce evidence in support of his assertion that he was not in fact guilty of the offences of which he had been convicted.

The Divisional Court, in a reserved judgment delivered by Lord Taylor of Gosforth CJ, dismissed the appeal and refused leave to appeal. Their reasoning can be summarised as follows. First, they appear to have accepted that the effect of the Solicitors Disciplinary Proceedings Rules 1994 which incorporated section 11 of the Civil Evidence Act 1968 was that a certificate of conviction was admissible to prove the fact of the convictions, which, as I have indicated, was not in issue, and as prima facie evidence that the applicant (respondent in those proceedings) was guilty of the offence; prima facie evidence only because it was subject to the qualification in section 11(2)(a) "unless the contrary is proved". It is fair to say that Mr Shepherd, in his submissions to us this morning, has placed particular emphasis on that fact and has dwelt on the significance of the prima facie nature of the presumption to which section 11 refers.

Secondly, the Court concluded that the appellant's argument that the tribunal were erred in refusing to allow him the opportunity to prove that the convictions were wrong should be rejected, essentially for the following reasons: first, because the charge which brought discredit on the appellant and the profession and rendered him guilty of conduct unbefitting a solicitor was the very fact that he had been convicted and sentenced to imprisonment; secondly, because the practice of the tribunal not to go behind the conviction unless there were exceptional circumstances was lawful and justified, as authorities which the Court cited established. Particular reliance was placed on Hunter v. Chief Constable of the West Midlands Police & ors [1982] AC 529 and Smith v. Linskill (A firm ) [1996] 2 All ER 253. These are cases on the circumstances in which it is an abuse of process to challenge in a civil action a previous decision of a court of competent jurisdiction, the principles of which were held to apply with equal force to a tribunal such as the Solicitors Disciplinary Tribunal. The judgment of the Divisional Court concludes with these words:

"Here, the appellant claims that despite being represented by experienced leading counsel at his trial, his defence was not effectively put before the jury. He did not appeal against his conviction preferring to attempt to establish before the Tribunal on a civil burden of proof that he had been wrongly convicted and perhaps to use that as a lever to seek leave to appeal out of time against his conviction. We are told that well out of time he has now sought leave to appeal against conviction, that the single judge has refused such leave but that he has renewed his application to the full court.

Hunter's case and Smith v. Linskill were both civil actions in which it was the plaintiffs who made the collateral challenge to their previous convictions. The Tribunal proceedings were brought against this appellant by the Law Society. The phraseology in the cited cases about initiating a collateral attack on the conviction does not therefore apply directly. Do the same principles apply? In our judgment they do as was recognised in the Privy Council's decisions."

There follows the particularly important part of the judgment:

"Public policy requires that, save in exceptional circumstances, a challenge to a criminal conviction should not be entertained by a Disciplinary Tribunal for the reasons quoted above from the Master of the Rolls' judgment. If this appellant's argument were right, he should have been allowed to challenge his conviction before the Tribunal even if he had appealed unsuccessfully to the Court of Appeal Criminal Division. That could, in theory, have led after a conviction by a jury on the criminal burden of proof, upheld by three Appeal Court Judges, to exoneration by a Disciplinary Tribunal on the civil burden of proof. Moreover, to achieve it, the witnesses from the criminal case would have had to undergo the trauma of a rehearing. In the absence of some significant fresh evidence or other exceptional circumstances such an outcome could not be in the public interest. Here the appellant had not even applied for leave to appeal. There were no exceptional circumstances. What he wished to do was to have a rehearing of the criminal trial in which he could conduct his own case, as he submitted to us, better than his leading counsel. We are in no doubt that the Tribunal were right to refuse an adjournment and to refuse the appellant an opportunity to mount such an operation."

For those reasons the appeal was dismissed.

Mr Shepherd contends that this decision was wrong and that he had, in effect, an absolute right to seek to establish by evidence that his convictions were wrongful. That is given to him, he says, by the Solicitors Disciplinary Rules, incorporating, as they do, section 11 of the Civil Evidence Act.

He particularly relies on cases to which the Divisional Court were not referred, an unreported decision of Forbes J of 15 July 1985 (to which he has not specifically referred us this morning, but a transcript of which he kindly provided us) in The Professional Conduct Committee of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, ex parte The United Kingdom Central Council for Nursing, Midwifery and Health Visiting , and Re a Solicitor [1992] 2 All ER 335, a decision of the Divisional Court presided over by Lord Lane CJ, to passages in which he has drawn our attention this morning.

The case before Forbes J involved an application for judicial review to quash a decision by the Professional Conduct Committee to permit the defendant in disciplinary proceedings to argue that he was not guilty of the criminal offence of ill-treating a mental patient, of which he had been convicted in the Crown Court. The charge was that, having been so convicted, he was guilty of misconduct. In that case too, the defendant had admitted the fact of the conviction, and the relevant rules of procedure incorporating the provisions of section 11. Forbes J rejected an argument that a particular provision of the rules prohibited the defendant from alleging that he was not guilty, and held that the incorporation of section 11(2) was intended to give the defendant an opportunity of proving that he was wrongly convicted and therefore held that the application failed. On any view, this was the right result since the challenge was to a decision to allow that which the rules plainly envisaged that the committee might allow.

Re a Solicitor was a case very much on its own special facts. The "conviction" in question was not by a court of competent jurisdiction but by the Barristers Board of Western Australia, though it had, according to the Board, resulted in an order by the Supreme Court of Western Australia that the appellant's name should be struck off the Roll. The matter that brought these events before the Divisional Court was the decision of the Solicitors Disciplinary Tribunal in England that the charge of unbefitting conduct (perjury in connection with Australian divorce proceedings) had been proved on the basis that there was no reason to doubt the Australian Board's decision. The appellant appealed on grounds inter alia that the Australian Board's findings were inadmissible and that the disciplinary tribunal had applied the wrong standard of proof. It was held that the tribunal was entitled to admit and make such use as was proper in the circumstances of the Australian Board's findings, but its task was to have regard to all the evidence before it, including that of the appellant, and that contained in affidavits adduced on her behalf, and decide whether the offences were established to the criminal standard of proof. The appeal was allowed and the matter remitted to the tribunal because it was not clear what burden of proof the tribunal applied, or that they had recognised that they were required to reach a final decision of their own on the critical question of whether the appellant had been proved guilty of the misconduct alleged, rather than merely determining that there was no reason to doubt the Australian Board's decision.

This decision, it seems to me, does not touch on the reasoning of the Divisional Court in the instant case which was that to permit Mr Shepherd, who had not challenged his conviction on appeal, to assert that it was wrongful, would be an abuse of process. For my part, I cannot fault the reasoning of the Divisional Court in applying that principle and, in my judgment, there is here no arguable basis for appeal. I would refuse leave accordingly.

LORD JUSTICE LEGGATT: Though I felicitate Mr Shepherd on the cogency with which he has presented his own application, I am constrained, for the reasons given by my brother Hutchison LJ, to agree that it should be dismissed.

ORDER: Application dismissed.