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, WC2A 2LL
		21/02/2018

Mr Justice Garnham :


 


Introduction

1. On 2 August 2017 the Solicitors Disciplinary Tribunal ("the Tribunal") imposed a sanction of indefinite suspension on the Respondent, Mr Iain Farrimond, following his admission that he was in breach of the 2011 Principles of the Solicitors Regulation Authority ("SRA"). His breaches of those Principles followed his plea of guilty to a charge of attempted murder.
2. This is an appeal by the SRA, pursuant to Section 49 of the Solicitors Act 1974, against that sanction. The SRA contend that that sanction was "clearly inappropriate" and that the only sanction properly open to the Tribunal was to strike off Mr Farrimond's name from the Role of Solicitors.

The Proceedings before the Tribunal

3. On 30 September 2016, in the Crown Court at Worcester before His Honour Judge Dickinson Q.C., Mr Farrimond pleaded guilty to the offence of attempted murder. The circumstances of the offence are summarised by the Tribunal in these terms (at paragraph 15.7):

"In the middle of the night, on 26 May 2016, the Respondent had got out of bed leaving his wife asleep. He'd gone to the kitchen and picked up a knife, returned to his bedroom and stabbed his wife to her head. He had intended to kill her, then kill another family member and then commit suicide. He's previously written a suicide note for the attention of a relative. Although the Respondent had used a knife to deliver repeated blows to his wife's head and face, she was able to wrestle the knife from him. He then continued the attack using a wooden ornament. He then went to the garden and tried to impale himself on a knife after calling the emergency services."

4. There was a considerable body of psychiatric evidence available to the judge which he concluded substantially reduced Mr Farrimond's culpability, thereby justifying a sentence below the bracket for such offending contained within the appropriate Sentencing Guideline. Nevertheless, culpability was not extinguished and, in those circumstances, Mr Farrimond was sentenced to a term of 6 years' imprisonment.
5. As a result of the conviction, on 2 August 2017, the Tribunal considered allegations made by the SRA to the effect that Mr Farrimond had:

i) failed to uphold the rule of law and the proper administration of justice and therefore breached Principle 1 of the SRA Principles 2011;

ii) failed to act with integrity and therefore breached Principle 2 of the SRA Principles 2011;

iii) failed to behave in a way which maintains the trust the public placed in him and in the provision of legal services and therefore breached Principle 6 of the SRA Principles 2011.

6. The allegations were admitted before the Tribunal. Mr Farrimond declined the opportunity to attend the hearing before the Tribunal by video link from prison, and the Tribunal considered the matter in his absence.
7. In the light of the conviction, the Tribunal was satisfied that Mr Farrimond had failed to uphold the rule of law and the proper administration of justice. They were satisfied that "attacking another person with a knife showed a lack of moral soundness or a steady adherence to an ethical code"; the Tribunal was therefore satisfied that he had failed to act with integrity. The Tribunal's attention was drawn to newspaper articles describing the conviction; in the light of that documentation the Tribunal was satisfied that his conduct had not maintained the trust the public placed in him or in the provision of legal services. Accordingly, and without contest, they found that all the allegations were proven.
8. The Tribunal then considered the mitigation set out by Mr Farrimond in writing. They considered the medical reports which had been considered by Judge Dickinson, the personal victim statement of Mrs Farrimond, professional character references and the remarks of the sentencing judge at the sentencing hearing.
9. Mr Farrimond submitted that "this tragic incident would not have taken place had it not been for his medical condition at the material time". He pointed out that the offence had not been committed during the course of his employment as a solicitor, that he had co-operated fully with the police investigation to whom he had made full and frank admissions, and that he had entered a plea of guilty at the earliest opportunity.
10. The Tribunal then turned to consider the appropriate sanction. It noted that Mr Farrimond had submitted that the appropriate sanction would be to make "a restriction order preventing him, indefinitely, from working as a solicitor other than in employment approved by the SRA". The Tribunal had regard to its Guidance Note on Sanctions and to Articles 6 and 8 of the ECHR. It noted that the "Respondent's motivation had been affected by his medical condition".
11. The Tribunal considered the remarks of the sentencing judge which underlined the psychiatric condition from which Mr Farrimond was suffering. It noted, in particular, the following observations of the judge:

"You committed this offence in the grip of a severe [medical condition]….which in the words of Dr [J], an experienced psychiatrist, had a catastrophic effect on your thinking….

The doctors agree, and it's frankly, obvious to everyone, that you committed the offences because of that [medical condition]. It doesn't make sense, but your thought process appears to be that you couldn't cope with work, you would never return to this work, so rather than look for other work or find a dignified way out of it, you thought that you would kill yourself, and then seem to have thought that because you could not, therefore, provide for your wife and [relative], and they would suffer, therefore you would kill them and then yourself. Obviously not only is that terrible, it makes no sense, but that was how you were thinking, because of your [medical] illness….

You have no innate criminality in you - put another way, but for the effect of your illness you do not have a violent bone in your body…..

…your severe [medical condition] is very substantial mitigation. Also important mitigation is your good character, and also in this case the fact that your wife, and other family and friends, stand by you, they love you and they care for you, and, in a very real sense, the time that you spend in prison is punishment also on the very victim of this offence…"

12. The Tribunal treated the harm done to the reputation of the legal profession as an aggravating feature. However, it concluded that Mr Farrimond's culpability was low. It noted that there was some element of pre-planning but said that his actions were not deliberate or calculated because it was the result of his ill-health. It pointed out that Mr Farrimond had not concealed what he had done and that this was a "single episode in an otherwise un-blemished career of almost 30 years". It noted that he had shown genuine insight and remorse, made open and frank admissions and co-operated with the regulatory process. It took into account the professional references and the fact that the victim impact statement revealed that Mr Farrimond's wife was supportive of him.
13. In paragraph 3, the Tribunal referred to a passage in the judgment of Sir Thomas Bingham MR in Bolton v The Law Society [1994] 1WLR 512, a judgment to which I return below, and then expressed the view that "there was a realistic prospect that the Respondent could eventually recover from ill-health, and respond to re-training and return to practice eventually". The Tribunal concluded:

"It would not be proportionate in the light of the medical evidence provided, the excellent references and the fact that this was a single incident that occurred due to the Respondent's ill-health to permanently remove his ability to practice, thereby also depriving the public of a good solicitor. The Respondent's medical condition at the time of the incident was a unique factor in this case and made it wholly exceptional."

14. In those circumstances the Tribunal decided that the appropriate and proportional sanction was indefinite suspension.

The Arguments

15. On behalf of the SRA, Mr Edward Levey argued that the sanction imposed by the Tribunal was "clearly inappropriate". The SRA submitted that given the gravity of the criminal offence and Mr Farrimond's lengthy term of imprisonment the only sanction properly open to the Tribunal was a striking off. It was said that "it cannot be in the public interest or protect public confidence in the profession for an imprisoned criminal to remain on the Roll of Solicitors and thus also remain an officer of the court".
16. Mr Levey noted that the sentencing judge had observed that the case was "in equal measure, serious, shocking and sad". He argued that the imposition of a suspension gave too much weight to the "sad" aspect of the case but placed insufficient weight on the "serious and shocking" aspects of it.
17. Mr Farrimond appeared before us by video link. He relied on written submissions lodged with the court, which he developed orally with moderation and no little skill. In argument, he supported the reasoning and decision of the Tribunal.
18. He referred to paragraph 43 of the Guidance Note on Sanctions which provides that an indefinite suspension "marks the highest level of misconduct that can properly be dealt with, short of striking off the roll". As he pointed out, "in deciding that indefinite suspension is the appropriate sanction, the Tribunal" will have determined that:

" The seriousness of the misconduct is so high that striking off is the most appropriate sanction; but

The presence of truly compelling personal mitigation makes that course of action just and or

There is a realistic prospect that the Respondent will recover from, for example illness…..or respond to re-training so that they no longer represent a material risk of harm to the public or the reputation of the profession."

19. He argued that the Tribunal correctly followed the framework for assessing the seriousness of misconduct as set out in the Guidance Note, that they had regard to three expert psychiatric reports and the sentencing remarks of the judge and to the guiding principles set out in Bolton v The Law Society. In those circumstances, Mr Farrimond submitted that the Tribunal had adopted a correct, structured approach to the case and came to a proper, reasoned decision in accordance with the guidelines. He says that the Tribunal was entitled to find that the circumstances of the case made it "wholly exceptional" so as to justify indefinite suspension.
20. Mr Farrimond accepted that this offence was serious and that he bore some culpability. But, he said, all cases are fact specific and it was essential to view his offending "through the prism of his mental illness".

Discussion

21. The quotation from the judgment of Sir Thomas Bingham MR in Bolton v Law Society referred to by the Tribunal is part of a longer passage which sets out what has long been accepted as the proper approach to determining sanction in professional conduct cases. It is worthwhile setting out the whole passage:

"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. 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."

22. It follows from that dictum that the focus of a professional disciplinary body's attention has to be on the need to maintain public confidence in the profession; this is different from that of a criminal court determining sentence.
23. The Solicitors Disciplinary Tribunal is an expert tribunal well experienced in dealing with varying misconduct by solicitors. It approached this case in a careful and thoughtful manner. It correctly identified the relevant factual background and adopted a proper approach to considering sanction. It explained its reasoning clearly. This court always recognises that the Tribunal is well placed to determine the appropriate sanction and will pay great respect to the Tribunal's decisions on sanction.
24. Thus, in The Law Society v Brendan John Salsbury [2008] EWCA Civ 1285 Jackson LJ considered the circumstances in which this court should interfere with a decision of the SDT. He said :

"From this review of authority I conclude that the statements of principle set out by the Master of the Rolls in Bolton remain good law subject to this qualification: in applying the Bolton principles, the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 the convention. It is now an overstatement to say that a very strong case is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert, an informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law the High Court must pay considerable respect to the sentencing decisions of the Tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere."

25. The question, therefore, is whether the sanction applied in this case was clearly inappropriate.
26. There is no doubt that this is both a serious and a sad case. Mr Farrimond was admitted to the roll of solicitors on 15 Oct 1987 and had been a competent and respected solicitor for 28 years, at the time of the offence in May 2016. It is clear from the medical evidence that he developed a severe depressive illness with symptoms of "depressed mood, loss of interest with reduced concentration, reduced self-esteem, ideas of unworthiness, bleak and pessimistic views of the future, ideas of suicide and disturbed sleep." (See the report of Dr Andrew Johns dated 8 Aug 2016)
27. Judge Dickinson QC, in the course of his sentencing remarks, concluded that this was a planned killing but that the Mr Farrimond's depression constituted "very substantial mitigation". Reflecting the mitigation, the judge concluded that he should reduce the appropriate starting point from 15 years to nine years imprisonment. He then gave full credit for the plea of guilty in imposing a sentence of six years imprisonment. It is apparent from that sentence that, despite the mitigation, it was the view of the sentencing judge that significant culpability continued to attach to Mr Farrimond's conduct.
28. It must be emphasised that Mr Farrimond pleaded guilty to a very serious offence. Powerful mitigation was advanced on his behalf but that did not alter the character of the offence itself: there was no question of his suffering a defect of reason due to disease of the mind such that he did not know the nature or quality of his act or that it was wrong. His illness did not therefore provide a defence to the charge; he recognised this fact by his plea of guilty and he acknowledged it before this court. The sentencing judge felt able substantially to reduce the sentence to reflect the powerful mitigation but nonetheless, recognising the seriousness of the criminality involved, imposed a significant punishment. In my view, the commission of an offence of attempted murder, on facts such as these, is wholly incompatible with remaining on the Roll of Solicitors or remaining an officer of the Court.
29. The need to maintain among members of the public "a well-founded confidence that any solicitor they instruct will be a person of unquestionable integrity, probity and trustworthiness" is the paramount consideration for the Tribunal and this court. In my view, that objective would be undermined by an order that had the effect of keeping Mr Farrimond's name on the Roll during the currency of a term of imprisonment for an offence of attempted murder. The only appropriate sanction was that his name be struck off from the Role.
30. I would add this. The crisis experienced by Mr Farrimond followed his inability to cope with the stressful nature of his work as a Senior Crown Prosecutor. That was so despite the fact, as he acknowledged, that he received significant support from his employers, the Crown Prosecution Service.
31. The Tribunal was greatly influenced by the possibility that Mr Farrimond might recover from his illness, respond to retraining and be fit to return to practice. I share the Tribunal's optimism that this might be possible, although such predictions are fraught with difficulty and considerable care would have to be taken to ensure that whatever Mr Farrimond chose to do, he was not subjected to stress which might again cause serious mental illness. But as Mr Levey submits, were Mr Farrimond to make such progress, it would be open to him to apply for his name to be restored. In the meantime, in my view, it is both right and necessary that his name be struck off the Roll.

Conclusion

32. I have a significant measure of sympathy for Mr Farrimond and a very great deal of sympathy for his wife and son. In my judgment, however, the sanction imposed in this case by the Tribunal cannot stand because of the seriousness of the offending and the consequent damage to public confidence in the profession it will have engendered.
33. In those circumstances, I would allow this appeal, set aside the sanction of indefinite suspension and substitute an order that Mr Farrimond be struck off the Roll.

Sir Brian Leveson P:

34. I agree. In my judgment, it is beyond argument that a solicitor sentenced to any substantial term of imprisonment should not be permitted to remain on the Roll even if suspended indefinitely. The difference between indefinite suspension and strike off might be limited to the period of time before which an application to restore (or resume) can be made and it may be that the conditions suggested by the Tribunal, if satisfied, might permit Mr Farrimond to make an application to be restored to the Roll if he feels that such an application is appropriate and sensible given the mental state into which he had descended prior to the attack. It is simply inconceivable that a prisoner, serving a sentence of 6 years' imprisonment, should be able to describe himself as a solicitor and officer of the court albeit suspended from practice.
35. Furthermore, the work of a solicitor, in whatever field he or she practises, inevitably involves a degree of stress and the public must be able to expect that those whom they consult are not so susceptible to mental ill health that they are at risk of behaving as Mr Farrimond did, however difficult the work might become. Before being restored to the Roll, it will be necessary for Mr Farrimond to provide the clearest evidence of recovery such that such an assurance in that regard can be accepted.