England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th May 2006

Lord Justice Keene :

I will ask Mr. Justice Jack to give the first judgment

Mr Justice Jack :

1. This is an appeal by the Law Society against the decision of the Solicitors Disciplinary Tribunal made on 27 September 2005 that the respondent, Claire Louise Wilson, had been guilty of conduct unbefitting a solicitor and should be suspended from practice as a solicitor for one year. The Society contends that the Tribunal should have ordered that Miss Wilson be struck off the Roll of Solicitors.
2. On 4 June 2004 Miss Wilson appeared before the East Dorset Magistrates Court and pleaded guilty to 6 offences of false accounting. On 9 February 2005 a community punishment order of 80 hours was made together with an order that she pay costs of £70. The offences were offences contrary to section 17(1)(a) of the Theft Act 1968, which carries a maximum of 7 years imprisonment. The charges were all in similar form. They related to cheque requisition forms for travel expenses stating that Miss Wilson had attended at immigration interviews of clients at the Home Office in Croydon for clients, when she had not. The forms had been completed by Miss Wilson during her employment by Leonard & Co in Southampton. Four were for £85.15 and two for £65. £170 was paid before she was discovered. The dates of five of the interviews were 26 February (2), and 19, 23 and 31 March 2003. The date of the sixth is unclear. Miss Wilson had not herself attended them. They had been attended by a trainee solicitor from the firm. The expenses would have been paid by the Legal Services Commission. The form of a typical charge was:

"That you at Southampton in the County of Hampshire on the 31^st day of March 2003, dishonestly with a view to gain for yourself or another or with intent to cause loss to another, falsified a document, namely a cheque requisition form for 85.15 pence by falsely purporting that you had attended an Immigration Tribunal at the Home Office in respect of Mr Al Tahaireh made or required for an accounting purpose."

3. In paragraphs 6 to 32 of its written decision titled 'Findings' the Tribunal set out the submissions made to it on behalf of Miss Wilson. They consisted largely of factual assertions as to how she came to commit the offences. The submissions were supported by her written statement dated 12 September 2005 and its exhibits relating to her work load. Although under the heading of Findings the Tribunal merely recorded that it found the uncontested allegation of unbefitting conduct to have been substantiated, it is plain from what is said under the heading 'The Tribunal's Decision and its reasons' that the Tribunal accepted what Miss Wilson put forward as to how her offences came to be committed. Miss Wilson's written statement had not been challenged on behalf of the Society. If it had been intended to put in issue any matter of fact asserted by her, that should have been raised with the Tribunal and Miss Wilson asked to give evidence. She could then have been questioned on behalf of the Society, and the Tribunal would then have made its findings of fact based on what they heard. I set this out because in his opening submissions on behalf of the Law Society Mr David Barton at one point appeared to be critical of the Tribunal for wholly accepting the factual basis of Miss Wilson's mitigation.
4. The substance of Miss Wilson's mitigation can be summarised as follows. Miss Wilson was born in 1975 and so was 30 at the time of the hearing. She commenced a training contract with Leonard & Swain Solicitors in Southampton in July 1998. She intended to specialise in civil litigation. In March 2000 the firm had a large influx of immigration and asylum work. Mr Leonard instructed Miss Wilson that she should concentrate on this work, which she did, studying the relevant law. She had a dramatic increase in her work: her case load rose to being in excess of 300 cases. She had only secretarial assistance. She was admitted as a solicitor in August 2000. The partnership between Mr Leonard and Mr Swain was dissolved in December 2002. She remained with Mr Leonard. She became an acknowledged expert on immigration and asylum law. She was instructed never to turn a case away. She exceeded her yearly costs targets by large margins. She worked long hours in the office, came in on Saturdays and Sundays, and she took work home. She was not allowed to delegate work to others who had less work. When Mr Leonard became a sole practitioner he instructed her that for cost reasons counsel were no longer to be employed before the Immigration Appellate Authority and the Immigration Appeal Tribunal, nor were agents to be used for Home Office interviews: Miss Wilson herself was to undertake this (which would be in London, Croydon or Liverpool). Mr Leonard rejected her proposals to ease her work load and did not accept that it was impossible for her to carry the heavy case load and to attend hearings and interviews. Her relations with Mr Leonard deteriorated. She became fearful for her job. In order that Mr Leonard should think she was complying with his request to attend Home Office interviews in Croydon and Liverpool she claimed she had travelled to interviews when she had not by completing the six claims for expenses which gave rise to the charges. She was dismissed by Mr Leonard on 1 May 2003. He accepted that she had not acted for financial gain and said he would provide her with a reference. He made a report to the Law Society. In July 2003 Miss Wilson obtained employment as an immigration and asylum specialist with SolomanReed in London. The Law Society initially stated that it would not permit this employment to continue but approval was later given. In January 2005 SolomanReed closed its immigration department and Miss Wilson was made redundant.
5. The Tribunal set out its decision and reasons as follows:

"34. The Respondent expressed herself to be fully aware that there was every possibility that her dishonest actions would lead to the imposition of the ultimate sanction. Indeed, it is only in rare circumstances that the Tribunal would not impose a striking off order upon a solicitor who has been dishonest and who has been convicted of a criminal offence involving dishonesty.

35. In this case the Tribunal has given the Respondent credit for her early admissions. The Tribunal accepts the Respondent's explanation that she put in false claims for petrol expenses on six occasions to demonstrate to her employer that she had been attending interviews and Tribunals when she had not. The Tribunal also accepts that the Respondent had pointed out to her employer what with her large caseload she could not find time to make long trips and attend in such a way.

36. The Tribunal recognises that at the material time the Respondent was a young and relatively inexperienced in the solicitors' profession. It is said that the Respondent was recognised as having expertise in the field of asylum and immigration law, but it could not be said that she had a great deal of experience amassed over a period of time. The Tribunal is in no doubt that the Respondent was a competent and hardworking solicitor.

37. There was no suggestion that the Respondent had on any other occasion acted with anything other than the utmost honesty, openness and frankness. The Tribunal is able to accept that the Respondent took the foolish steps which she did in desperation whilst carrying the burden of a large caseload and being under pressure inappropriate to her level of experience. The Tribunal noted that the Magistrates considered it right to impose community service upon the Respondent and ordered her to pay costs in a relatively small sum. It was clear that the Magistrates did not consider the Respondent's shortcomings to be of the gravest nature.

38. The Tribunal accepted the Respondent's assurance that she had learned a salutary lesson. The Tribunal took into account the fact that the matter had been hanging over the Respondent's head for two and a half years, had caused difficulties with her health and she had suffered further by being aware of the effect that anxiety about the matter had had on her parents.

39. The Tribunal gave the Respondent credit for having tried to make the best of a bad situation, for taking employment in a firm of solicitors whilst being entirely frank about her own position and also for studying and taking the immigration advisors' examinations. Further, the Respondent had attended the Tribunal hearing and expressed her remorse to the Tribunal for which she has also been given credit.

40. In all the particular circumstances of this matter the Tribunal concluded that it could exceptionally not order that the Respondent be struck off the Roll. It was necessary however, to impose a serious sanction upon the Respondent that would interfere with her ability to practise in order to demonstrate to members of the public and other members of the solicitors' profession that behaviour such as that perpetrated by the Respondent would not be tolerated.

41. The Tribunal ordered that the Respondent be suspended from practice for one year. The Tribunal noted that an agreement as to the Applicant's costs to be met by the Respondent had been reached and included in its decision the order that the Respondent should pay the Applicant's costs in the agreed fixed sum of £2,250.00 inclusive."

6. Mr David Barton has submitted on behalf of the Law Society that here the only sentence which could properly protect the reputation of the solicitors' profession in a case of six offences of dishonesty committed in the course of employment was striking off. He submits that suspension for 12 months was so clearly wrong that the court should interfere. He submitted that the Tribunal had allowed itself to be swayed by sympathy for Miss Wilson rather than having in mind the needs of the profession as a whole.
7. The starting point has to be the judgment of the Master of the Rolls, Sir Thomas Bingham, in Bolton v Law Society [1994 1 WLR 512. At page 518 B he stated:

"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 that 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 had 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 that 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 by denied re-admission. If a member of the public sells his house, very often his largest asses, 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 weight 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."

8. In short, in cases of proven dishonesty striking off will almost invariably be the appropriate penalty, and, in addition to any punitive or preventative purpose, the reason will be to maintain the profession as one that can be trusted. It follows that mitigation which is personal to the offending solicitor will commonly be largely irrelevant in a case of dishonesty because it is irrelevant to the maintenance of the reputation of the profession.
9. Mr Barton referred us to a number of cases which, he submitted, showed that striking off was the only appropriate outcome in the present case. Mr Michael Tomlinson representing Miss Wilson submitted that when their facts were examined they could be seen to be much more serious cases than her own, and that they should be distinguished. The real assistance that those cases provide is that 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 in these cases.
10. Bolton itself was not a case on dishonesty, but the outcome may nonetheless be instructive. There the solicitor acted in the sale of a house. He advanced a sum received from a building society mortgagee to the prospective purchaser in advance of completion instead of holding it in his client account. The sale did not go through and the society received no security. The Tribunal found the solicitor's conduct to have been naïve and foolish rather than deliberately dishonest and suspended him from practice for two years. The Divisional Court heard further evidence in mitigation and allowed the solicitor's appeal substituting a fine for the suspension. The Court of Appeal held that the Divisional Court should not have interfered with the Tribunal's decision, but did not reimpose the suspension by reason of the time the proceedings had taken.
11. In the case of Jackson, unreported, Divisional Court, 17 June 1991, the solicitor had been convicted before the Crown Court of three counts of obtaining property by deception, and sentenced to a suspended sentence of imprisonment with fines totalling £1,500 and costs of £10,000. In the case of each count the solicitor and his co-defendant had obtained monies from building societies, in all some £40,000, by means of dishonest representations. The Tribunal ordered that he be suspended from practice for 6 months. On appeal by the Law Society the Divisional Court, presided over by the Lord Chief Justice, ordered that the solicitor should be struck off. The judgment of the Lord Chief Justice emphasised the need for the public to be able to rely on the integrity of solicitors, and for mortgagees to be able to do so in mortgage transactions.
12. In the case of Mitchell, unreported, Divisional Court, 20 October 1998, the solicitor had been convicted of conspiracy to defraud building societies by dishonestly making false representations. He was sentenced to 9 months imprisonment reduced on appeal to 2 months. The Tribunal ordered him to be suspended from practice for 12 months. This court ordered that he be struck off.
13. In Maharaj, unreported, Divisional Court, 22 November 1999, the solicitor had been found guilty at her trial of a single count of attempting to procure the execution of a valuable security by deception and sentenced to imprisonment for 6 months. The security was a mortgage advance to herself of £150,000 and the deception was the inflation of her salary. She was young and inexperienced and there was no loss. The Tribunal held that 'public perception of this tragic case would not be unsympathetic to [the solicitor] continuing to be capable of practice as a solicitor.' It ordered her suspension for 6 months. This court ordered that she should be struck off. In giving the leading judgment the Lord Chief Justice, Lord Bingham, stated:

"In my judgment there is no escape from the conclusion that the public would undoubtedly be surprised and shocked to learn that a practicing member of the solicitors' profession had within a very recent period served a sentence of imprisonment for deliberate dishonestly. That would undermine the essential quality of trustworthiness on which the reputation and standing of the legal profession depends."

14. In Pope, unreported, Divisional Court, 31 January 2000, the solicitor had been convicted of two offences involving the dishonest use of a credit card obtain goods to a value of £410. He was fined £500 by the Glasgow Sheriff Court. The Tribunal ordered him to be struck off. His appeal to this court was dismissed.
15. Langford [2002] EWHC 2802 (Admin) was also an appeal against striking off. The solicitor had been involved in the improper use of clients' funds to finance the operation of the firm. The Tribunal held that he 'acted with conscious and advertent impropriety'. Another partner had been the main offender. The appeal was dismissed.
16. Bultitude [2004] EWCA Civ 1853 the Tribunal had ordered that the solicitor be struck off. On appeal to the Divisional Court an order of suspension for two years was substituted. The Court of Appeal re-imposed the order of striking off. The conduct in question was the transfer of client funds to the office bank account. It appeared that some clients had suffered financial loss in addition to loss of interest. Kennedy LJ stated that it was a clear case of dishonesty of a serious kind.
17. I should next revert to paragraph 14 of the judgment of Rose LJ in Langford where he sets out the approach of the court to an appeal, in particular to the weight to be given to the decision of the Tribunal as to the appropriate penalty:

"Before examining the substance of these submissions, it is necessary to identify, briefly, the approach which this court should, as it seems to me, adopt in an appeal of this kind. The classic authority as to the approach of this court is Bolton v Law Society [1994] 1 WLR 512. (To a passage in the judgement 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 [2001] 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 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 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."

Lord Millett went on to refer to Evans v General Medical Council (unreported) and just above G said this:

"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 counsel 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 an the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."

There is a passage to similar effecting the judgment of the Privy Council delivered by Lord Cooke of Thorndon in Preiss v General Dental Council [2001] 1 WLR 1926 at paragraph 27. In McMahon v The Council of the Law Society of Scotland Lord Gill (Lord Justice Clerk), giving the opinion of the court, having referred to Ghosh and Preiss said:

"…we must now apply a less rigorous test. We should simply look at the tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the tribunal and giving to their decision such weigh as we should think appropriate."

Then at paragraph 16 he went on:

"Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeal of this kind…."."

18. There is also a passage in the judgment of Lord Bingham in Pope which is directed to an aspect which is of particular relevance here:

"While the orders of the Solicitors Disciplinary Tribunal sometimes have a punitive element, that is not in very many cases their primary purpose, which is the maintenance of the good name and public reputation of the solicitors' profession. It is for the Tribunal to make the primary judgment whether non-professional misbehaviour will adversely affect the public reputation of solicitors, and in making that judgment the Tribunal have, unlike their predecessor Committee, the benefit of a lay member whose function is to make sure that the view of an ordinary reasonably informed member of the public is taken fully into account"

Pope was concerned with misconduct outside the solicitor's profession, but in my view the point can be made equally in relation to the public's view of professional misconduct.

19. In my judgment, this being a case involving criminal offences of dishonesty, it is one where mitigation personal to the solicitor can carry limited weight. The important factor is the maintenance of public confidence in the honesty and integrity of members of the solicitors' profession in the eyes of the public. The more that is likely to be affected, the less weight personal factors can carry, and vice versa. I do not think that, in considering what I will call the public aspect the Tribunal, or the court, is limited to the statement that Miss Wilson has been convicted of 6 offences of false accounting. Regard may and should be had also to what the offences involved. They involved attempts to deceive her employer that she had attended certain hearings in accordance with his instructions when she had not, the reason for her non-attendance being her unrealistic work load. Her motive was not to obtain the expenses in question, though inevitably it was her dishonest intention that she should be paid them. That in my view is the strongest point to be made in Miss Wilson's favour.
20. It is clear from paragraphs 35 to 39 of the tribunal's decision, set out above, that the Tribunal did give considerable weight to Miss Wilson's personal mitigation. The Tribunal referred to her (comparative) youth, her inexperience as a solicitor, her competence and hard work, her probity otherwise, the pressure she was under, that she had learnt her lesson that she had had the case hanging over her for two years with consequential health problems, and that she had re-established herself in a new job while being frank about what had occurred. Miss Wilson clearly attracted the sympathy of the Tribunal, and I can easily understand that. However, in a case of this nature it was the Tribunal's task to concentrate on the gravity of what Miss Wilson had done and to consider whether her criminal conduct was such that the maintenance of the reputation of the solicitor's profession as one that could be trusted required her to be struck off. If it did, the mitigation provided by her personal circumstances could carry little weight.
21. The Tribunal also took account of the magistrates' sentence. I should say that I have no difficulty at all with the magistrates' conclusion that a community punishment order was appropriate. But the magistrates were not concerned with the considerations set out by the Master of the Rolls in Bolton, namely with the public interest in the maintenance of the reputation of the profession. The magistrates could take full account of Miss Wilson's personal mitigation. I do not suggest that the Tribunal should have put out of mind the magistrates' decision : it was part of the overall picture, and it was a relevant factor that Miss Wilson had not been sent to prison. But it was important that the Tribunal should have in mind the difference between its function and that of the court.
22. I conclude that in giving the weight which the Tribunal did to Miss Wilson's personal mitigation the Tribunal failed to follow the approach laid down in Bolton, in particular that set out in the third paragraph set out above. It follows that the court must form its own view of the appropriate penalty and while not putting the Tribunal's decision wholly on one side must give it substantially less weight than it would if the Tribunal had adopted the correct approach. I have concluded, with reluctance in the circumstances, that Miss Wilson's conduct in committing the offences which she admitted was such that she must be struck off. She intended to deceive her employer and the Legal Services Commission that she had carried out work which she had not. That put her trustworthiness seriously in question, and she should not be a member of the profession.

Lord Justice Keene :

23. I agree.