SRA Code of Conduct – conduct outside of the office – the Beckwith case revisited
In a short but powerful judgment, the Administrative Court granted Mr Beckwith’s appeal against findings that he breached Principles 2 and 6 of the SRA (Solicitors Regulation Authority) Code of Conduct. The court also provided much needed clarity as to the scope of the SRA’s entitlement to consider conduct “outside of the office” through a regulatory lens. We reported on the first instance decision here.
The facts and the SDT (Solicitors Disciplinary Tribunal) decision
Mr Beckwith and a younger associate in his team engaged in sexual activity whilst under the influence of alcohol. An internal investigation was undertaken and Mr Beckwith was issued with a final written warning as to his conduct. Regulatory proceedings were commenced by the SRA and breaches of Principles 2 (lack of integrity) and 6 (public confidence in the profession) were upheld. Mr Beckwith was issued with a fine of £35,000 and was ordered to pay the SRA’s costs of £200,000. The SDT rejected the allegation that Mr Beckwith had acted in abuse of his position of seniority or authority – finding instead that he had acted “inappropriately”.
The appeal focussed on four issues:
- “Professional misconduct” as a gateway to regulatory sanction
- “Maintaining public trust in the profession”
- ECHR (European Convention on Human Rights) Article 8 – the respect for private life.
The SDT’s decisions as to costs was then considered.
As to each of these, the key findings were:
1 A threshold submission was made that the allegations did not arise out of “professional misconduct” which, implicitly, could be said to be conduct “as a solicitor” or “in the office”. Whilst noting the “superficial attraction” of the submission, it was said to “disintegrate” upon examination of the regulatory scheme in place.
Here, the SRA Code (as applicable at the time and similar to those of many other professions) is not limited in application to conduct “as a solicitor” – the statutory gateway under the Solicitors Act 1974 is whether the allegation is sufficiently serious that it may result in an order for striking off, a suspension, fine or payment of a penalty above the SRA minimum limit. The relevant conduct therefore does not need to be in an “office” or “professional” context.
2 As to “integrity”, the key allegation before the SDT was that Mr Beckwith’s conduct was an abuse of his position of seniority. That was not established – instead his conduct was described as “inappropriate”. Having considered, with approval, the well-known SRA v Wingate summary of the meaning of “integrity” in a professional conduct setting, the court confirmed that the requirement for integrity must arise out of obligations in the Code – in this case, the section which concerns the relationship between solicitors and third parties and the requirement not to take unfair advantage of others.
As it had not been established before the SDT that Mr Beckwith had taken unfair advantage/abused his authority (a finding the court accepted as “clearly right”) there was no breach of Principle 2.
In an elegantly worded rebuke, the court found that: In the premises, the Tribunal’s final statement that the Appellant had “fallen below accepted standards” is not coherent. Whatever “standards” the Tribunal was referring to as ones which identified what, in the circumstances of this case, the obligation to act with integrity required, were not ones properly derived from the Handbook.
3 As to “maintaining public trust”, similar considerations applied as to the “integrity” allegation. The court’s findings in full require no additional gloss: What the Appellant did affected his own reputation; but there is a qualitative distinction between conduct of that order and conduct that affects either his own reputation as a provider of legal services or the reputation of his profession. The Tribunal asserted that the Appellant’s behaviour crossed this line but provided no explanation. At paragraphs 25.189 – 25.190 the Tribunal stated that “Members of the public would not expect a solicitor to conduct himself in the way the [Appellant] had. Such conduct … would attract the [dis]approbation of the public”. However, the Tribunal had already concluded that the Appellant’s conduct did not amount to an abuse of his seniority or authority over Person A. On the application of Principle 6 to the facts of this case, that conclusion is a critical conclusion…
4 As to Article 8 ECHR rights, there has been much concern amongst commentators as to so called “regulatory creep”, with the regulator taking increasing interest in matters “away from the office”.
The court made no finding that a person’s private life could never be the subject of scrutiny but found that: Principle 2 or Principle 6 may reach into private life only when conduct that is part of a person’s private life realistically touches on her practise of the profession (Principle 2) or the standing of the profession (Principle 6). Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook. In this way, the required fair balance is properly struck between the right to respect to private life and the public interest in the regulation of the solicitor’s profession. Regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.
There can be no doubt that the court was unimpressed by the SDT’s findings and that its judgment will affect the prosecution of other cases where the conduct alleged may be “inappropriate” but can find no proper grounding in the relevant regulatory code. Some commentators have called for an overhaul in the SRA’s prosecution methodology and others have suggested that the SDT is not sufficiently experienced to deal with the broader scope of prosecutions brought before it. The SRA has said it is considering the judgment “before considering any next steps” – we expect those steps will be of broader application than just this case.
The court was also concerned as to the level of costs which had been incurred in prosecuting the case – which were nearly four times the estimate provided. Dismay as to the level of costs (often it can be said without an understanding of the volume of material which the SRA is required to review) is often expressed by commentators. Whether or not those specific concerns are valid in this case, of broader application is the general principle that a successful defendant to a SRA prosecution rarely recovers costs, which many solicitors regard as unfair.
In the event of further high profile failures by the SRA, we can expect that principle to be challenged (albeit current support is provided for it at Court of Appeal level).