England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		28 April 2004

1. LORD JUSTICE MAURICE KAY: This is an appeal under the Solicitors' Act 1974 against a decision of the Solicitors' Disciplinary Tribunal. Mr Chohan, the solicitor in question, faced a charge of conduct unbefitting a solicitor, in that he had breached an undertaking in relation to a video of a child witness interview.
2. The Tribunal heard the case following Mr Chohan's admission of guilt, and imposed upon him a penalty of six months' suspension from practice as a solicitor, at the same time ordering him to pay costs in the sum of £1,750.74. It is against the order of suspension that he now appeals.
3. I refer first to the findings of the Tribunal. Mr Chohan was born in 1959 and is now aged 43. He was not admitted as a solicitor until 1998, when he was aged 39. He had previously worked as a legal executive and then took a law degree (as a mature student) prior to qualifying as a solicitor. At the material time, whilst he had only been on the Roll a short time, he was in partnership in a firm, Dickenson Parker Hill in Ormskirk, Lancashire. In that position he came to represent a man, to whom I shall refer as M, who had been charged with two serious sexual offences against a 12-year-old child. The evidence against M included evidence from the child obtained by way of a video interview. On 15th July 2001, whilst the matter was still proceeding in the Magistrates' Court, Mr Chohan received a copy of the videotape from the Crown Prosecution Service and signed an undertaking. The undertaking included these obligations:

"a) not to make or permit any other person to make a copy of the recording;

b) not release the recording to M;

c) not to make or permit any disclosure of the recording or its contents to any person except when ... it is strictly necessary in the interests of the child and/or the interests of justice;

d) ensure that the recording is always kept in a locked, secured container, and not left unattended in vehicles or otherwise unprotected;

e) return the recording ... when ... no longer professionally involved in the matter, either by hand or using Special Delivery postal service only;

f) and will record details of the name of any person allowed access to a recording together with details of the source of the authorisation granted to him or her."

4. As it happened, the precise circumstances of the receipt of the videorecording by Mr Chohan were somewhat unusual: he was actually on his feet in the Magistrates' Court, addressing the magistrates, when he was handed the video and when he signed the undertaking. Those circumstances were later described by Mr Ryan, when opening the case before the Tribunal, as being "hectic".
5. Mr Chohan gave evidence to the Tribunal to the effect that at the time he received the videorecording he had not realised that he was signing an undertaking and that he had believed that it was simply a receipt. That evidence was accepted at the Tribunal.
6. To take the story forward. M was subsequently convicted and sentenced to a term of imprisonment. It seems that M's family were then concerned to obtain advice about a possible appeal and, in that connection, consulted another firm of solicitors. M's mother produced a copy of the videotape to the new solicitor. Understandably the new solicitor was concerned that she should have possession of it at all, and he brought it to the attention of the authorities. That is how this case came about.
7. The evidence of Mr Chohan, which was accepted by the Tribunal, was that he had not personally made the copy, but he had authorised a trainee to make a copy, at a time when he did not realise that he had signed an undertaking. He had not authorised the release of the tape to M's mother or anyone else. The making of a copy had resulted from a request from counsel who was instructed in the case.
8. The trainee in question seems to have had some involvement in the conduct of the litigation. He was a somewhat unusual trainee in that he too was a person of mature years, whose occupation was that of a National Health Service consultant in a local hospital, but he had decided to train as a solicitor. It was he who attracted (if that is the right word) the particular case to the particular firm. The trainee is of Italian origin, as is M, and M had sought representation by a firm which included the facility of an Italian language speaker. As I understand it, the Italian consul in Liverpool, knowing of the trainee, had put M in contact with Mr Chohan's firm for that very reason. That the trainee spoke Italian was obviously an advantage. What was not an advantage is that neither the firm nor, more importantly, Mr Chohan was accustomed to criminal practice. That, no doubt, explains why he was unfamiliar with the form of undertaking that solicitors are customarily required to give in circumstances such as these.
9. There was some material before the Tribunal concerning something that had been said by the trainee to the senior partner, but the Tribunal sensibly appears to have taken no account of the that (the trainee not having given evidence or made a statement) and we shall treat it in the same way.
10. That then was the factual background. It is abundantly clear from the transcript of submissions and the evidence, and it is confirmed with scrupulous fairness by Mr Ryan before us, that the case was being put to the Tribunal -- somewhat unusually in a case of breach of undertaking -- as turning on a breach of an undertaking of which Mr Chohan was unaware at the time when the copy was made and the other insecurities took place.
11. I turn now to the decision of the Tribunal, which I set out at some length:

"No solicitor can be in any doubt that a breach of an undertaking is grave. The purpose of the undertaking given by the Respondent in this case had been to protect the anonymity of a twelve year old boy giving the Police details of serious sexual offences committed against him. The consequences to the child, had his identity come into the public domain, were likely to have been devastating. The Tribunal has taken into account not only the gravity of the breach of a professional undertaking by a solicitor but has also taken into account the possible consequences of breach which would not have been capable of remedy.

The Tribunal notes the Respondent's evidence that he had been asked to sign the undertaking whilst he was engaged on another case in the Magistrates Court [in fact, he had been engaged on the same case]. The Respondent was of course aware of the subject matter of the charges against Mr M and the fact that the complainant was a child. He clearly was aware of the particular circumstances of the case and its sensitivity. It was extremely foolish to have signed a document without giving it his full attention and not to have insisted upon being supplied with a copy.

It was accepted that the form of receipt and undertaking was a standard form and no doubt those requiring its signature were accustomed to dealing with solicitors for whom the giving of such an undertaking was routine. The Crown Prosecution Service should always ensure that a solicitors is provided with a copy of such undertaking. A prudent solicitor would insist upon that.

The Tribunal considered that the Respondent had adopted an unacceptably relaxed approach to the way in which he conducted Mr M's matter. It recognised that Mr M was the Respondent's client, but it could not be overlooked that the Respondent had a strong duty in his capacity as a solicitor and an officer of the court to protect a child witness.

The Tribunal has given the Respondent credit for his hitherto unblemished record and the testimonials written in his support. It has also given him credit for his admissions and his clear recognition that he had been in breach of professional undertaking and his regret and remorse for what he had done.

The Tribunal had before it no evidence that the identity of the child witness had at any time come into the public domain and it hoped that that was indeed the case. The Tribunal do take into account the potential serious consequences that the breach of the undertaking might have caused.

The Tribunal accept that the Respondent is a hard working, responsible and diligent solicitor and a good family man.

The Tribunal considers that the seriousness of his behaviour can be marked only by an order which interferes with the Respondent's ability to practise. Whilst recognising that such an order is hard on the individual, the protection of the public and the good reputation of the solicitors' profession is the Tribunal's overriding duty and it feels that it can only fulfil the duty by making an order that the Respondent be suspended from practice for a period of six months.

The Respondent should be in no doubt that the Tribunal gave close consideration to imposing a striking off order. It was only because of the factors which it took into account in mitigation of the Respondent's position that it felt able to impose a period of suspension of six months.

The Tribunal has, of course, made no finding of dishonesty or other impropriety against the Respondent ...

The Tribunal wishes to make it very plain that it does not feel able to deal with the breach of such an undertaking by a solicitor with leniency and solicitors having conduct of cases involving child witnesses where undertakings are given in respect of videos made of their evidence should be well aware of this."

12. The notice of appeal to this court pleads grounds of appeal simply in the form of a contention that the penalty of suspension for six months is too severe and that a financial penalty would have been the fair and proportionate response.
13. Before turning to the submissions made on behalf of Mr Chohan, it is appropriate to say something of the approach required of this court when hearing an appeal such as this. In the case of Bolton v the Law Society (1994) 1 WLR 512 the Court of Appeal held that since a professional disciplinary tribunal is the body best fitted to assess the seriousness of professional misconduct, an appellate court should not interfere with its sentence save in a very strong case. In other words what was contemplated was a process of review set against that criteria. However, it is common ground before us that that is no longer the appropriate approach, particularly since the coming into force of the Human Rights Act 1998.
14. In his skeleton argument Mr Ryan drew our attention to the recent authorities, including Langford v Law Society [2002] EWHC (Admin) 2802 in which Rose LJ, sitting in this court, referred to the more recent cases of Ghosh v General Medical Council [2001] 1 WLR 1915 and MacMahon v Law Society of Scotland SOR 36, before saying at paragraph 14:

"... 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 the 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.'"

Rose LJ then made reference to Evans v General Medical Council (unreported) as, indeed, had Lord Millett in Ghosh and, in particular, a passage which says:

"... 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."

Rose LJ then drew attention to Preiss v General Dental Council [2001] 1 WLR 1926 and proceeded to approach the appeal of the solicitors in Langford on the basis adumbrated in those authorities. In other words, recognising that a change of approach was necessary after the Human Rights Act.

15. That we are told by Mr Hopper QC, with all his experience of the jurisdiction, is the approach now understood to operate in the world of solicitors' disciplinary proceedings. It is the approach which we are invited to adopt by both parties to this appeal. I should add that in a more recent case, Awan v Law Society [2003] EWCA (Civ) 1969, there is a passage in the judgment of the Master of the Rolls at paragraphs 57 to 58 which seems to conflict with that approach. However, Mr Hopper, who appeared on behalf of the Law Society in that appeal, has told us that both parties had contended for the Langford approach and there had been no argument to the contrary.
16. As both parties are content and urge us to adopt the Langford approach, that is what we shall do. We therefore treat this as a rehearing, albeit one within which we should accord appropriate respect to the decision-making body.
17. I turn now to the submissions made by Mr Hopper on behalf of Mr Chohan. Some of those submissions amount to a textual criticism of passages in the decision of the Tribunal and the language there used. For my part, I see no error in the Tribunal having taken into account the possible consequences of the breach, which would not have been capable of remedy. Nor do I find it erroneous to have described Mr Chohan's behaviour, in signing the documents in the circumstances in which he did, as "extremely foolish." I say the same of the finding of "an unacceptably relaxed approach." To the extent that Mr Hopper seeks to make something of that wording, I do not accept his submission. However, I do accept what I perceive to be his primary submission, namely that the penalty imposed by the Tribunal was erroneously excessive in the circumstances of this case. If a solicitor were to breach an undertaking of this kind, knowingly or deliberately, he would have to expect severe punishment, even more so if he did so for a nefarious reason, such as personal gain or in order to obtain an advantage in litigation.
18. However, that is simply not this case. As I have said, it is common ground that Mr Chohan did not know that by authorising the making of a copy he was in breach of an undertaking. It was accepted by the Tribunal that he was to be punished on that basis. It was still conduct unbefitting a solicitor, because a solicitor, however inexperienced, ought not to sign a document containing an undertaking without realising that that is what he has done.
19. It is not disputed that Mr Chohan signed the undertaking believing that it was simply a receipt, whilst on his feet addressing the magistrates. A solicitor experienced in this kind of criminal work would have known what he was being asked to sign, but it is accepted that Mr Chohan was essentially a solicitor of limited experience and one with a civil practice. Indeed, as I have observed, he and his firm only became involved in this case because M wanted a firm with someone who could speak Italian. It may have been unwise for the firm, and for Mr Chohan, to take the case on, but that is not the charge against him.
20. In these circumstances, I take the view that this is an exceptional case on its facts. As such, it is not one that could best be used "to send out a message." There is certainly a message to be sent in respect of deliberate breaches of undertaking, where leniency is virtually unimaginable, but I accept Mr Hopper's submission that this was and is not a case which can be employed justly for that purpose; to do so would be unfair on Mr Chohan.
21. In saying that, I acknowledge that the punishment of errant solicitors is not generally conditioned solely by their personal circumstances. Reference has been made to the judgment of Sir Thomas Bingham, Master of the Rolls, in Bolton, and it pays repetition. He observed at page 518 that a penalty is not always punitive in intention, adding at 518H to 519A:

"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."

22. That is an important principle in the selection of penalty in disciplinary proceedings concerning solicitors. In his submissions today, Mr Ryan initially sought to place this case within the Bolton category of cases in which a solicitor has fallen below to the required standards of "integrity, probity and trustworthiness", whilst at the same time accepting that Mr Chohan had not been dishonest. Wisely, in my view, Mr Ryan later resiled from that submission. It seems to me that dishonesty and lack of integrity, probity and trustworthiness are all matters involving at least a degree of moral turpitude which is not present in the present case on the findings of the Tribunal, or on the case as it has been presented to us.
23. It is common ground that the offence of conduct unbefitting a solicitor can be committed with or without moral turpitude. This case is undoubtedly one lacking in moral turpitude. Moreover, when one considers the need to have in mind the perception of the public, it is important to invest the public with the knowledge of this case that we have, namely that it is one from which that element of moral turpitude (knowledge and deliberation) is absent.
24. In all those circumstances, and having regard to the features to which I have referred, I take the view that in the absence of a guilty mind, fairness required and requires a degree of restraint when considering what to do in Mr Chohan's case. That degree of restraint is enlarged when the solicitor is, as Mr Chohan is, a person with an otherwise unblemished record and with the benefit of reliable laudatory references, which paint an admirable picture. They come from other solicitors and from members of the Bar who have been instructed by him. Without descending into detail, it is sufficient simply to observe that they make it clear that, as the Tribunal found, Mr Chohan is a hardworking, responsible and diligent solicitor. There is no dispute as to his regret and remorse for what has happened in this case.
25. In all these circumstances, I would allow his appeal and set aside the penalty of suspension imposed by the Tribunal. In my judgment, it was plainly too severe for this particular case which, I repeat, I regard as having exceptional features. For my part, I would substitute a financial penalty which I would fix at £2,500.
26. MR JUSTICE CRANE: I agree with the result and with the reasons that my Lord has expressed. I add only certain brief comments. In Bolton v The Law Society [1994] 1 WLR 512, in the judgment of Sir Thomas Bingham, Master of the Rolls, at page 518D, he said:

"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 the profession whose reputation depends upon trust. A striking off order will not necessary 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 case would the tribunal be likely to regard as appropriate any order less severe than one of suspension."

27. I accept that there must be public confidence in the solicitors' profession: the public must be able to trust solicitors. However, conduct unbefitting a solicitor may damage public confidence without necessarily involving a breach of standards of integrity, probity and trustworthiness. A solicitor should only be found to have breached such standards where that is admitted or proved. Here it was not even alleged. Conduct unbefitting a solicitor may, for example, as here, involve an unintentional but inexcusable breach of a solicitor's obligations. I accept that there are some cases even of that kind which may well be sufficiently serious to deserve suspension or even striking off. But, in my judgment, this particular case of unintentional and inexcusable breach of a solicitor's obligations did not reach a degree of seriousness requiring suspension. In my view it failed to reach that degree of seriousness by a clear margin.
28. MR HOPPER: My Lords, would you therefore allow the appeal with costs. You will be unsurprised to learn that, in either event of the outcome of this appeal, Mr Ryan and I have been able to agree each other's costs. The figure that we put forward, with an invitation that your Lordships order it as a summary assessment, is the appellant's costs in the sum of £11,945.37.
29. LORD JUSTICE MAURICE KAY: Are they paid by the Law Society?
30. MR HOPPER: My Lord, yes.
31. LORD JUSTICE MAURICE KAY: Yes. Are you content with that, Mr Ryan?
32. MR RYAN: Yes, I am.
33. LORD JUSTICE MAURICE KAY: Certainly. Appeal allowed. The decision of the Tribunal as to penalty set aside, substitute a financial penalty of £2,500 and the Law Society to pay Mr Chohan's costs, summarily assessed at £11,945.37; that is the costs in this court, the costs below remain where they were. Thank you both very much.