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SRA update including new Indicative Sanctions Guidance

SRA update including new Indicative Sanctions Guidance

Conflicting signals seem to be emerging from the High Court on the question of interfering with the decision of the SDT.

Hot on the heels of  SRA v Chan Ali and Abode, where the tribunal decision was overturned as it was ‘plainly wrong’,comes the decision in Benyu v SRA, which reaffirmed the old view that the correct approach on appeal was to treat the hearing as a review and not a rehearing. An appeal would be allowed only if the decision was unjust or wrong or there was a procedural error. 

The latest version of the Indicative Sanctions Guidance has just been released. It applys to cases heard on or after December 1 2015.

 

 

In Benyu v SRA, 20th November 2015, which is unreported, Carr J pointed out that the SDT had had the advantage of hearing evidence from live witnesses and the court should be slow to interfere with decisions on facts taken by the first instance body.

The court chose to follow Bhatt v GMC and the Divisional Court in Newfield v Law Society, [2005] EWHC 765 (Admin), where Steel J said,

‘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.’

Although this observation seems to fall into the trap of describing sanction as a ‘sentence’ which is retributive rather than regulatory, the decision was supported by La

ws LJ who has given a number of definitive decisions in this arena, including the case of Fatnani & Raschid v General Medical Council [2007] EWCA Civ 46 where he supported the independence of the panel saying,

‘It is clear that the overriding principles are the preservation of public confidence in the profession and the need to give a special place to the judgment of the specialist panel'.

This seems to row in the opposite direction to the recent decision in SRA v Chan, Ali and Abodesee blog article 30th September 2015.  

 The 2015 Indicative Sanctions Guidance.

This is an update of the current version dated August 2012.  Click here to download the full version. New sections include:

  • New section on s43 powers to revoke a section 43 order ( re those not admitted but employed or remuerated by solicitors)
  • New powers concerning employees of solicitors and managers and employees of recognised bodies – extended by s 47(2(E) of the Act and an amendment by the Legal Services Act 2007 to the AJA 1985. Including an order directing payment of an unlimited financial penalty payable to HM Treasury and b an order requiring the SRA to refer to the appropriate regulator and matter concerning the conduct of the employee.
  • A new section in respect of Registered European Lawyer  [REL] and Registered Foreign Lawyers [RFL]. Para 42 notes Lord Justice Laws in Giambrone v SRA [2014] EWHC 1421 Admin at para 55 – the sanction of withdrawal of registration of a REL ‘posesseses a gravity that lies between the sanctions of suspension and/or strike off in the case of an English solicitor.’
  • Specific attention is drawn to the words of Collins J in Ellis – Carr v SRA [2014] EWHC 2411 (Admin) 57 ‘What matters when an application for restoration to the Roll is considered by the Tribunal is the present position and the future.. he should be judged on the basis of what he now is and whether there is any real prospect that…he can be regarded as someone who is fitted to be on the roll of solictiors’
  • Application for Review and Revocation of a Section 43 Order. This is a regulatory function that can be exercised in the absence of the applicant if there is no prima facie case for quashing or revoking the order. This is a review not a rehearing.
  • Costs. Although Baxendale- Walker is still very much relied upon by the SRA to justify their position that costs should not be paid unless the Applicant can demonstrate bad faith on the part of the SRA, the decision in Broomhead – v SRA [2014] EWHC 2772 (Admin) 42 is dealt with, where Nicol J held that although there may be something about the way the solicitor has conducted the proceedings or behaved himself, it does not follow that the solicitor who has successfully defended himself should have to pay the SRA’s costs. ‘Even if the charges were properly brought, it seems to me that in the normal case the SRA should have to shoulder its own costs where it has not been able to persuade the Tribunal that its case is made out. I do not see that this would constitute an unreasonable disincentive to take appropriate regulatory action’

 

 

 

 

 

For any advice and assistance for issues like these please do call Jeremy on 0844 2722322 or submit a comment below. Jeremy will come back to you at the earliest convenience.

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