England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 16 October 2001

1. LORD PHILLIPS,MR: Mr Guiseppe Nicastro appears before me in person to appeal against the refusal of the Solicitors' Disciplinary Tribunal ("the tribunal") to allow his application to be restored to the Roll. He was struck off the Roll in 1994 in the following circumstances.
2. Mr Nicastro had been admitted as a solicitor in November 1984. His practice included residential conveyancing. On 18 June 1991 he was convicted by the Crown Court of a series of offences of dishonesty: obtaining property by deception by way of mortgage fraud in the sum, first of £140,000 from the Leeds Permanent Building Society and £100,000 from the Bradford and Bingley Building Society; the theft of £200,000 belonging to Barclays Bank; and procuring the execution of a valuable security by deception, resulting in the Bristol and West Building Society executing a cheque in the sum of nearly £120,000. He was sentenced to a concurrent sentence of four years' imprisonment and released on parole on 16 September 1992.
3. Mr Nicastro tells me that, since his release, he has made substantial efforts to find employment, but that his criminal record has prevented him from doing so even in a menial capacity. His only skills are his legal training and, with some minor exceptions, he has remained unemployed. Since his release, the applicant has been in receipt of welfare housing benefits. His home was repossessed in 1992 and he was made bankrupt. He now lives with his wife and two daughters in local authority accommodation. In 1993 he lodged an appeal against his convictions, but decided to withdraw that appeal and move on with life and try to put the past behind him.
4. The tribunal rejected his application to be restored to the Roll, making the following observations in their decision dated 23 May 2001:

"Mr Nicastro had accepted that he had been guilty of serious criminal offences involving dishonesty for which he had served a custodial sentence. The Tribunal accepted that Mr Nicastro and his family had had a very difficult time. It was well established that a solicitor who had been struck off the Roll of Solicitors following acts of dishonesty on his part would be very unlikely indeed to be restored to the Roll of Solicitors. It is hard to conceive of the type of exceptional circumstances that would permit the Tribunal to order the restoration to the Roll of such a person. Whilst having every sympathy for Mr Nicastro's predicament, the Tribunal is not able to overlook the fact that he was struck off the Roll of Solicitors having been convicted of serious criminal offences involving dishonesty carried out in the course of his practice as a solicitor as a result of which he had served a long period in prison. It would not be in the interests of the public or the good reputation of the solicitors' profession to grant Mr Nicastro's application."

5. Mr Nicastro has, himself, referred to the leading decision on the approach to be adopted in a case such as this, that of Bolton v The Law Society [1994] 2 All ER 486. That case involved the misappropriation of client funds. The solicitor was suspended by the Solicitors' Disciplinary Tribunal, but appealed successfully to the Divisional Court. The Law Society appealed to the Court of Appeal, which held that the Divisional Court should not have interfered with the Tribunals decision. In the course of its judgment the court said at page 491:

"Only infrequently, particularly in recent years, has the tribunal been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty has been established, even after a passage of years, and even where the solicitor has made every effort to re-establish himself and redeem his reputation."

6. A little later, at page 492, dealing with the approach of the tribunal, the court said that a fundamental purpose of its jurisdiction was:

"....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 his 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.....A profession's most valid 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.....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."

7. Mr Nicastro also placed before me a decision of my predecessor, Lord Woolf, Application No 5 of 1998, which he heard on 26 June 1998. That was an application to be restored to the Roll made by a solicitor who had been struck off after conviction of offences of dishonesty. In the course of his judgment, Lord Woolf indorsed the following comments made in 1997 by his predecessor, Sir John Donaldson, who, in Application No 5 of 1997 said:

"The problem is, quite simply, one which I have met before and on which I have expressed a view before, namely that, however sympathetic one may be towards an individual member of either branch of the legal profession, if you fall very seriously below the standards of that profession and are expelled from it there is a public interest and an interest in the profession itself in hardening its heart if any question arises of your rejoining it. Neither branch of the profession is short of people who have never fallen from grace. There is considerable public interest in the public as a whole being able to deal with members of those professions knowing that, save in the most exceptional circumstances, they can be sure that none of them have ever been guilty of any dishonesty at all.

....

There must be cases where, in the view of Parliament, a solicitor should be readmitted to the Roll, but I am bound to say that I regard that as a very exceptional situation. It must take account of the gravity of the offence. While it would be wrong, and indeed by definition it is impossible, to define 'exceptional circumstances', the sort of case that I have in mind would be a case where it could be shown that, by a mental illness or overwhelming stress of some sort, there was a moment of complete and utter aberration which was totally out of character and which might be lived down by subsequent conduct to such an extent that it could be said that any reasonable-minded member of the public, knowing the facts, would say, 'Really any profession should be proud to readmit the applicant as a member'."

8. Mr Nicastro has put his oral submissions, which, despite the fact that he told me he has no experience as an advocate, he put, clearly and lucidly, under two heads. The first he described as macro grounds and the second as micro grounds. The submissions made under the head of macro grounds are in my experience unprecedented in relation to such an application. First, he submits that failure to restore him to the Roll infringes Chapter 20 of Magna Carta in that its effect is disproportionate in that it amounts to a sentence which is so heavy as to deprive him of his livelihood.
9. In my judgment, this reference to Magna Carta is misconceived. Magna Carta cannot possibly impose on the Law Society an obligation to enter on the Roll a man that the Law Society does not, for good reason, consider a suitable person to be held out as a practising solicitor. That closes to the applicant that particular means of earning his livelihood, but it is certainly not right to describe such a course as depriving him of his livelihood.
10. The second macro ground advanced by Mr Nicastro is that the refusal to allow his name to be restored to the Roll breaches a number of Convention rights that have now been embodied in our constitution by the Human Rights Act 1998. He submits that such a refusal amounts to degrading treatment or punishment under Article 3 of the Convention; that it is a deprivation of liberty contrary to Article 5 of the Convention; and that it is a wrongful discrimination on the basis of his other status as an ex-offender contrary to Article 14 of the Convention.
11. These submissions also are wholly misconceived. Refusal of an application to restore a solicitor to the Roll cannot possibly amount to degrading treatment, nor is it a deprivation of liberty, nor is it wrongful discrimination. It is, if the applicant is not a proper person to be readmitted to the Roll, a perfectly proper and justifiable course to follow.
12. I turn to Mr Nicastro's micro grounds. He urges that he has now had eleven years' punishment with continuous effect. It is true that the effects of his wrongdoing have continued up to the present day but, as has been said and said repeatedly in this context, the concern of the tribunal, and of any appellate tribunal where the certification of a solicitor is concerned, is not one of punishment, it is one of, first, protection of the public and, secondly, the protection of the goodstanding of the profession of solicitors.
13. Mr Nicastro then urges that there are serious steps that the Law Society can take to protect the public if he is restored to the Roll. It can qualify his certificate, it can extract from him a series of undertakings, which he is all too willing to give, it can ensure that he does not handle clients' money which he says he has no wish to do. Indeed, his wish is to work in relation to welfare rights. All these are points which can be made by any applicant to be restored to the Roll. They do not constitute special circumstances in relation to this applicant.
14. What are the special circumstances that he urges upon me? They relate, essentially, to the offences of which he was convicted. He submits that a distinction must be drawn between those offences and those which form the subject matter of the two cases to which I have referred. In his case the monies involved were not clients' funds and he was not the primary party responsible for the criminal acts, but he tells me, an unwilling participant. He states that he was coerced into these offences by his co-defendant who, according to the applicant, brought to bear the type of pressure which is, or has been, a feature in Sicily, the country from which Mr Nicastro's comes.
15. There is no way in which the tribunal, nor I, could properly go behind the conviction in this case and entertain a submission which amounts to averring that there was a defence of duress to the charges, which was not accepted by the jury.
16. In the course of his sentencing remarks, His Honour Judge Hickman observed that the offences of which the jury had found the applicant guilty, "All involved an abuse of the trust placed in him by the various loser institutions and involved the use by him of his professional expertise and status. Without the respondent, the scheme, initiated perhaps by the co-defendant, could not possibly have been carried out".
17. The offences spanned a period of eight months. They involved the theft or defrauding of four different institutions to a total of over £500,000. They constituted very serious breaches of trust by a solicitor of some experience who could not possibly be described as a callow youth. In my judgment they were properly reflected by the sentence of four years' imprisonment. Circumstances would have to be most exceptional for a man with such a criminal record to be readmitted to the Roll. Sir John Donaldson gave some examples of such circumstances, which I would indorse. None of those are present in this case.
18. The decision of Lord Woolf, No 5 of 1998, was one in which there were cogent special circumstances to be considered in that the applicant had been employed by a firm of solicitors for some years before he made the application. He had received glowing references from them as to his conduct during that period. Nonetheless, despite the special circumstances, Lord Woolf felt unable to accede to his application to appeal against the refusal to restore him to the Roll.
19. As I have said, in the present case there are no such circumstances. I fear that, having regard to that fact, this was an application which was doomed to failure.
20. Accordingly, I dismiss this appeal.
21. MR LYNCH: My duty to my clients does ask me to request your Lordship to make an order for costs in favour of the Law Society. I appreciate entirely Mr Nicastro's position. Whether that order be enforced will lie with the Law Society itself.
22. LORD PHILLIPS,MR: Mr Nicastro, you cannot resist, can you, an order?
23. MR NICASTRO: Sir, I have nothing to add to the request. I understand it follows the event.
24. LORD PHILLIPS,MR: The Law Society will have their costs.