Scottish Court of Session Decisions

This is an appeal under section 54(1) of the Solicitors (Scotland) Act 1980 ("the Act"). It is brought before this court by way of petition. The petitioners appeal as a "person aggrieved" by a decision of the Scottish Solicitors' Discipline Tribunal ("the Tribunal") dated 20 January 1999.

It is a matter of admission that the respondent was admitted as a solicitor in 1983. He was the subject of a complaint to the Tribunal at the instance of the petitioners in terms of section 53(1)(b) of the Solicitors (Scotland) Act 1980 ("the Act"). That complaint followed his being sentenced to a period of 3 years' imprisonment following his conviction on 20 October 1997, after trial, of a contravention of section 1(1)(a) of the Firearms Act 1968, as amended by the Firearms Amendment Act 1988. The respondent had appeared for trial on an indictment containing another charge, in respect of which he was acquitted. Following his conviction, he was detained in custody until 20 November 1997 when the trial judge imposed a sentence of three years imprisonment backdated to 20 October 1997.

The complaint to the Tribunal was presented by a solicitor who had been appointed Fiscal by the Council of the Law Society of Scotland on 24 September 1998. It was accompanied by a Statement of Facts which narrated briefly the facts relating to the respondent's admission and practice as a solicitor. It also narrated (with minor inaccuracies) the fact of his being convicted and sentenced. The only statement in relation to the offence of which he was convicted was contained in one sentence reading:

The remaining paragraph of the Statement of Facts drew attention to the provision contained in section 53(1)(b) of the Act enabling the Tribunal to exercise the powers specified in section 53(2). The findings made by the Tribunal disclose that the Tribunal appointed the complaint to be heard on 9 December 1998 and that notice thereof was duly served upon the respondent. However, the respondent did not appear on that occasion and was not represented. The Tribunal then continued the matter until Wednesday 20 January 1999 when the hearing took place. The Fiscal appointed by the petitioners appeared for the petitioners and the respondent was represented by counsel.

In presenting the complaint to the Tribunal the Fiscal stated:

The Tribunal Chairman then invited counsel to speak on behalf of the respondent. Counsel explained that he had represented the respondent at the trial in October 1997 and suggested that it would be to the advantage of everybody on the Tribunal to hear from someone who was at the trial and was thus aware of the facts. Counsel then referred to the respondent's personal circumstances and gave an abbreviated account of the circumstances in which, according to the respondent, he had committed the offence libelled on the indictment under section 1(1)(a) of the Firearms Act, as amended. Counsel also explained that the respondent had appealed against the conviction and sentence but, in the course of the oral hearing of the appeal, had instructed counsel to withdraw the appeal. The Court of Criminal Appeal had therefore made no ruling in relation to the sentence of three years, which counsel nonetheless suggested to the Tribunal was severe. A member of the Tribunal put two questions to counsel for the respondent and the Tribunal adjourned. Thereafter the Tribunal announced that it had decided to censure the respondent and to find him liable in the expenses of the complainers and the Tribunal. An interlocutor to that effect was pronounced. It is that interlocutor which is appealed.

In the present petition the petitioners maintain that the decision to censure the respondent was "plainly wrong and unjustified" in certain respects. It was quite insufficient in the light of his conviction and sentence. In particular it is suggested in the petition that the Tribunal proceeded upon a basis of incorrect material fact. The essence of the suggestion, narrated at some length in the petition under reference to a transcript of the proceedings before the Tribunal, is that the account of matters which the respondent had given, and which was narrated by counsel to the Tribunal as if it were factually correct, had plainly been unanimously rejected by the jury in their verdict. Furthermore, the Tribunal had not been informed that the trial judge had made it quite plain that he was imposing the sentence of three years imprisonment upon the basis that that account of events had been rejected by the jury, and that the respondent was being sentenced not on the basis of that account of events, but on the basis that he was in possession of lethal firearms and ammunition of which the only possible use was the furtherance of crime. The second criticism of the Tribunal was that the decision to deal with the matter by way of a censure was one which no reasonable Tribunal properly directing itself could have arrived at in the light of the circumstances of the respondent's conviction and sentence regardless of the matters advanced in mitigation or explanation. In relation to the second ground, counsel said that it had two aspects. In the first place no reasonable Tribunal properly directing itself could have arrived at the decision in the light of the true circumstances surrounding the respondent's conviction and sentence. In any event, however, given that the respondent had received a sentence of three years imprisonment then, even without a full knowledge of the circumstances, the Tribunal would have been bound to exercise its power under section 53(2)(a) and to order that the name of the respondent be struck off the roll of solicitors. There were two other heads of criticism of the Tribunal's decision, but they were described by counsel for the petitioners as "make-weights" and developments of the two main grounds referred to. In presenting the case for the petitioners, counsel acknowledged to this court that the Tribunal had not been supplied by the Fiscal with anything other than the Statement of Facts and the brief oral statement quoted earlier. In particular, no copy of the indictment had been provided for the Tribunal. No copy of the judge's charge to the jury had been obtained and placed before the Tribunal. No transcript of the remarks made by the judge on imposing sentence, being remarks which explained why he was imposing a three year sentence, had been obtained and laid before the Tribunal. All this material could have been obtained; but the Fiscal had followed the usual practice in such cases and had provided no more than the bare details of the conviction and sentence.

In response, counsel for the respondent explained the circumstances in which he was instructed to appear before the Tribunal on 20 January 1989. He suggested that the procedures laid down in the Scottish Solicitors' Discipline Tribunal Procedure Rules 1989 might not have been followed. The respondent had not submitted in writing to the Tribunal any explanation or observation which he might wish to offer to the Tribunal in considering the exercise of their function under section 53 of the Act. Counsel stated that he had not realised until immediately before the hearing that the Tribunal was not in possession of any material other than the short Statement of Facts. He had thus felt it appropriate to give more details from his recollection of the case, concluded more than a year earlier. However, he also submitted that it appeared from the Tribunal's interlocutor and note following the hearing that the Tribunal had not attached any weight to the respondent's account of the precise circumstances which led to his conviction. He urged the court not to treat the present appeal as a re-hearing of the facts but simply to refuse it.

After a short adjournment this court announced that the appeal would be allowed and that the court would exercise its power under section 54(1) of the Act and direct that the complaint be referred back to a differently constituted Tribunal for a re-hearing. We accepted without difficulty the submission of both parties [well vouched by authority, notably the cases of Corrigan, unreported, 27 September 1985, McColl 1987 S.L.T. 524 and MacDonald 1992 S.L.T. 353] that the court should not interfere with a competent sentence selected by the Tribunal properly directing itself in relation to the relevant facts. However it was abundantly clear that the Tribunal which determined this matter on 20 January 1999 was not placed in possession of all the facts which were, or might well be considered by the Tribunal to be, relevant to a determination of the appropriate course to follow in exercising their powers under section 53 of the Act. At best, they had a lopsided account of the facts. In this case, and it may well be that the same can be said of other such cases, there was ample material available which could and should have been placed before the Tribunal before it was called upon to exercise its section 53 powers. In particular, the relevant parts of the judge's charge could and should have been made available. Similarly, the observations made by the judge in imposing a sentence of three years imprisonment should have been laid before the Tribunal, if only to explain the apparent discrepancy between the severity of the sentence and the explanation advanced on behalf of the respondent as to how he came to be guilty of the offence. A copy of the indictment should also have been laid before the Tribunal. The precise terms of the section infringed should have been placed before the Tribunal.

In these circumstances, the court was satisfied that the Tribunal was asked to determine this matter upon an insufficient and unsatisfactory basis of fact. Important and material facts which should have been laid before the Tribunal were not so laid. The petitioners will no doubt wish to reconsider their procedures and practices in relation to the presentation of complaints which depend upon the applicability of the provision in section 53(1)(b) that "a solicitor has...been sentenced to a term of imprisonment of not less than two years". We were told that the practice hitherto of simply laying before the Tribunal the bare fact of the conviction and the sentence of imprisonment, stemmed from the terms of Rule 14 of the Scottish Solicitors' Discipline Tribunal Procedure Rules 1989. We do not read that Rule as excluding reference to the full circumstances of a conviction. There may be cases in which the conviction speaks for itself so clearly that nothing more need be referred to: but in a case like the present, the conviction is not self-explanatory, and its significance cannot be fully understood and assessed without information as to the precise circumstances. The petitioners will no doubt wish to reconsider what steps require to be taken in order to place before the Tribunal full information relevant to the conviction and sentence to enable the Tribunal to exercise properly its jurisdiction under section 53.

We declined the invitation of the petitioners to determine the matter of new on the basis of the additional factual material laid before us, including the copy indictment, the judge's charge, and the observations made by the judge in imposing sentence. In our view, the respondent was entitled, and is entitled, to a determination by the Tribunal upon the basis of the material facts. Such a determination can be reviewed by the court. If the court were itself to take any of the steps envisaged by section 53(2) the court's order would not be appealable.

In order to allow the whole matter to be looked at afresh we considered that it was appropriate that the Tribunal should be constituted by different persons.