COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISIONAL COURT
Lord Justice Dyson and Mr Justice Lloyd Jones
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE JACKSON
| THE LAW SOCIETY
|- and -
|BRENDAN JOHN SALSBURY
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Donald Broatch (instructed by Holden & Co) for the Respondent
Hearing date : 5 November 2008
Crown Copyright ©
Lord Justice Jackson :
Part 1. Introduction
Part 2. The facts
Part 3. The Disciplinary Proceedings
Part 4. The Appeal to the Court of Appeal
"(1) An appeal from the Tribunal shall lie –
(a) in the case of an order on an application under Section 43(3) or 47(1)(d)(e) or (f) or the refusal of any such application to the Master of the Rolls
(b) in any other case, to the High Court…
(4) The High Court and the Master of the Rolls shall have power to make such order on appeal under this section as they may think fit."
"I appreciate that it is punishment enough for you, a solicitor of the Supreme Court, to find yourself a defendant in a criminal trial being convicted at the end of a fairly lengthy trial of an offence of dishonesty. That of course I take into account. That must constitute very considerable punishment for you.
I also proceed on the basis, given the acquittals on all the other counts, that so far as Count 5 is concerned you were not involved in a deception against the bank in the circumstances where you did not believe that you were entitled to the extra £1,000; I proceed on the basis that, giving you the benefit of the doubt as I feel I should, you added the £1,000 to that cheque in circumstances where, although you considered that you were entitled to it, you did not want to approach the trustees to ask for a further £1,000 or to ask them to countersign or initial any alterations to the cheque because you would have the chore to explain to them how the amount suddenly jumped from £862.50 to £1,862.50. Nevertheless it is plainly an offence which no solicitor should even contemplate let alone commit.
I take into account your background and indeed the financial pressures upon you as Miss Forshaw has pointed out. After a trial lasting around a fortnight with an indictment containing 25 counts and you having only been convicted on Count 5, I am of the view that I can take an exceptional course here, given in particular the punishment which will inevitably fall upon you by reason of the mere fact of conviction."
"25. The Tribunal considered the matters before it with an element of sadness. The Respondent had been guilty of an act of great stupidity when he sought to increase a cheque payable to him by a figure of £1,000.00. The Tribunal accepted the Respondent's explanation that the amended figure was properly the sum due to him but he nevertheless had been convicted of a criminal offence involving dishonesty.
26. The Tribunal recognised that as a result of this act of stupidity the respondent had already suffered a great deal.
27. The Respondent had very properly admitted the allegation, and the matter with which the tribunal had to grapple was the question of the appropriate sanction to be imposed upon the Respondent. The tribunal gave very careful consideration to all of the submissions made on behalf of the Respondent but it had to recognise that the fortunes of an individual did not carry as much weight as the need to protect the good reputation of the solicitor's profession. The solicitors' profession collective reputation for trustworthiness was its most valuable asset and the tribunal concluded that the public's perception of the profession's absolute trustworthiness would be damaged if a solicitor convicted of a criminal offence involving dishonesty were not to be made subject to the ultimate sanction.
28. The Tribunal concluded that it was both appropriate and proportionate to order that the Respondent be struck off the Roll of Solicitors."
"21. However, to my mind, there is force in the submissions made by Mr Broatch on behalf of the appellant in relation to the precise nature of what occurred in this case. I emphasise that this was an offence of a very unusual nature. It is an offence of dishonesty. The dishonesty, however, lies in that, by deception, this appellant caused the paying bank to believe that the cheque which he tendered was a good and proper order for the payment of £1,862.50 when it was not. The alteration was made and the cheque tendered in circumstances where, as the judge accepted, the appellant believed that the altered sum on the cheque was due and owing to him. Moreover, as the tribunal accepted, that altered sum was in fact due and owing to him. These wholly exceptional facts seem to me to bring this case right to the very bottom of the scale of dishonesty.
22. Altering this cheque was, of course, a very wrong thing to do. Nevertheless, having regard to the approach which this court now adopts, as formulated in Langford and the other authorities to which I have referred, it does seem to me that there must be a small residual category of cases of dishonesty where striking off may not be appropriate. After giving this matter anxious consideration, I have come to the view that this case falls within that very small residual category. I am fortified in that conclusion when I have regard to the personal mitigation which applies in this case. I appreciate that this is not a weighty factor in cases of its kind for the reasons given by the Master of the Rolls in Bolton. Nevertheless, I do bear in mind that while the professional consequences in any case of this sort will inevitably by catastrophic, the personal consequences in the private life of this appellant have been particularly grave.
23. Having regard to all of these considerations, I have come to the conclusion that the order made by the tribunal was excessive and is proportionately harsh, and for my part I would propose to set aside that order and to substitute an order for 3 years' suspension."
i) The decision was inconsistent with authority
ii) The Divisional Court erred in identifying Mr Salsbury's case as an exceptional one.
iii) The Divisional Court's decision is likely to have the effect of lowering the tariff in respect of penalties imposed by the Tribunal in dishonesty cases.
"It would require a very strong case to interfere with sentence in such a case because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct"
The Master of the Rolls then stated the guiding principles as follows:
"It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness…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 be 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 part of the price." (See pages 518-519)
"33. Practitioners have a statutory right of appeal to the Board under s.40 of the Medical Act 1983, which does not limit or qualify the right of the appeal or the jurisdiction of the Board in any respect. 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 recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes.
34. 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…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 council 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 in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."
27. "Since the coming into operation of the Human Rights Act 1998, with its adjuration in s 3 to read and give effect to legislation, so far as it is possible to do so, in a way compatible with the Convention rights, any tendency to read down rights of appeal in disciplinary cases is to be resisted. In Ghosh v The General Medical Council (Privy Council Appeal No 69 of 2000; 18 June 2001) the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past. An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in Libman v General Medical Council  AC 217, 1 All ER 798, at p 221 of the former report, suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread. That observation has been applied from time to time in the past, but in their Lordships' view it can no longer be taken as definitive. This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters. But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances. In the instant case the weaknesses already identified in the dental disciplinary structure and the failure to comply with r 11(2) go to diminish any reluctance that the Board might otherwise have in differing from the PCC. Against this background the Board now gives its own opinion on this case. "
"The classic authority as to the approach of this court is Bolton v Law Society  1 WLR 512. (To a passage in the judgment 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 into force of the Human Rights Act."
Lord Justice Rose then referred to passages in Ghosh and Preiss (which I have already quoted) and stated that the Divisional Court should adopt a similar approach to the instant appeal concerning a solicitor.
"The need for a Disciplinary Tribunal to uphold the integrity and probity of solicitors, by imposing appropriate penalties, is one to which Sir Thomas Bingham, MR, referred in the course of his judgment in Bolton v The Law Society. That is a matter which holds good today as much as it did in 1994, despite the modification to the test resulting from Ghosh and Preiss, to which I have referred."
In Nahal v The Law Society  EWHC 2186 (Admin) the Divisional Court reaffirmed that the Master of the Rolls' judgment in Bolton remained the classic exposition of the principles which the Solicitors Disciplinary Tribunal and, on appeal, the court should apply. Mr Justice Gibbs (with whom Lord Justice Dyson agreed) added that the Human Rights Act 1998 in no way disturbed or qualified the principles themselves. However it might affect the general approach of the court to an appeal of this kind.
"I accept that for the reasons set out by the Divisional Court in Langford v Law Society  EWCA 2802 (Admin), the approach of the court to decisions of the Solicitors Disciplinary Tribunal is not quite as it used to be. But we can, and in my judgment should, take cognizance of what the profession regards as the normal necessary penalty to be imposed upon those found to have acted dishonestly."
"In my judgment a professional disciplinary tribunal still remains the body best fitted to assess the seriousness of professional misconduct and an appellate court should be slow, save in a clear case, to interfere in the sentence of the relevant Tribunal."
"However, that is not the end of the matter because in hearing this case we are exercising an appellate jurisdiction, not a supervisory jurisdiction. It is therefore appropriate to consider whether in all the particular circumstances of this case the order was excessive or disproportionately harsh. I have come to the conclusion that it is."
Mr Justice Lloyd Jones then developed and explained this conclusion in paragraphs 21 and 22 of the judgment, which have been quoted in part 3 above.
Lady Justice Arden
Sir Mark Potter P