Law Society v Salsbury [2008] EWCA Civ 1285

[2008] EWCA Civ 1285Case No C1/2008/0837
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2008] EWHC 889 (Admin)
ON APPEAL FROM THE QUEENS BENCH DIVISIONAL COURT
Lord Justice Dyson and Mr Justice Lloyd Jones
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/11/2008
Before
THE PRESIDENT OF THE FAMILY DIVISIONLADY JUSTICE ARDENLORD JUSTICE JACKSON
Between
THE LAW SOCIETYAppellantBRENDAN JOHN SALSBURYRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Geoffrey Williams QC and George Marriott (instructed by Gorvins) for AppellantDonald Broatch (instructed by Holden & Co) for RespondentHearing Hearing date : 5 November 2008
JudgmentLord Justice Jackson :
[1]This judgment is in four parts: Part 1. Introduction Part 2. The facts Part 3. The Disciplinary Proceedings Part 4. The Appeal to the Court of Appeal

Part 1. Introduction

[2]This is an appeal by the Law Society against a decision of the Divisional Court, whereby that court set aside an order of the Solicitors Disciplinary Tribunal that the respondent be struck of the Roll of Solicitors and substituted an order for three years suspension.[3]The solicitor concerned is Brendan John Salsbury. He was respondent in the original disciplinary proceedings and appellant in proceedings before the Divisional Court. He is now respondent in the present appeal. I shall refer to him as “Mr Salsbury”. I shall refer on occasions to the Solicitors Disciplinary Tribunal as “the Tribunal”. I shall refer to the European Convention on Human Rights as “the Convention”.[4]The statutory provision governing appeals from the Solicitors Disciplinary Tribunal is section 49 of the Solicitors Act 1974. That section provides:
“(1) An appeal from the Tribunal shall lie – (a) in the case of an order on an application under Section 43(3) or 47(1)(d)(e) or (f) or the refusal of any such application to the Master of the Rolls (b) in any other case, to the High Court… (4) The High Court and the Master of the Rolls shall have power to make such order on appeal under this section as they may think fit.” (a) in the case of an order on an application under Section 43(3) or 47(1)(d)(e) or (f) or the refusal of any such application to the Master of the Rolls (b) in any other case, to the High Court… (4) The High Court and the Master of the Rolls shall have power to make such order on appeal under this section as they may think fit.”
[5]After these introductory remarks I must now turn to the facts

Part 2. The Facts

[6]Mr Salsbury was admitted as a solicitor in 1984. He practised in Sussex for many years, becoming senior partner of his firm in 2000. In 1999 Mr Salsbury was appointed Clerk to the Trustees of the William Parker school. Mr Salsbury received payment for his services as clerk to the trustees and further payment for any legal work which he undertook on behalf of the trustees. Mr Salsbury undertook such work outside normal office hours and not in his capacity as a partner in the firm of solicitors.[7]The trustees did not operate an efficient system. They relied mainly on trust and word of mouth.[8]Mr Salsbury from time to time made oral requests for payments on account of his fees and such cheques were always given. In November 2000 Mr Salsbury asked the trustees for a payment of £862.50. A cheque was duly given to him in that sum.[9]On 15 November 2000 Mr Salsbury altered the amount of that cheque so as to read £1,862.50. He presented the cheque to his bank and it was duly cleared.[10]Subsequently allegations were made about the manner in which the affairs of the trust had been administered. There was an investigation by the Charity Commission as a result of which a number of trustees resigned.[11]There were also disputes about the amounts of money which had been paid to Mr Salsbury and the circumstances of those payments. Mr Salsbury repaid the sum of £25,000 to the Trust without accepting that he had any liability to do so. There was a lengthy police investigation, as a result of which Mr Salsbury was indicted on 25 counts of theft, forgery, false accounting and obtaining money transfers by deception. Mr Salsbury stood trial at the Croydon Crown Court before Judge Stow QC and a jury between 16 June and 13 July 2006. The result of that trial was that Mr Salsbury was convicted on one count only, namely obtaining a money transfer by deception contrary to Section 15(A) of the Theft Act 1968. This count related to the cheque which Mr Salsbury had altered on 15 November 2000. The sentence imposed by the court on this count was a conditional discharge for 12 months. Mr Salsbury was also ordered to pay £3,000 towards the prosecution costs.[12]When passing sentence

Judge Stow said this:

“I appreciate that it is punishment enough for you, a solicitor of the Supreme Court, to find yourself a defendant in a criminal trial being convicted at the end of a fairly lengthy trial of an offence of dishonesty. That of course I take into account. That must constitute very considerable punishment for you. I also proceed on the basis, given the acquittals on all the other counts, that so far as Count 5 is concerned you were not involved in a deception against the bank in the circumstances where you did not believe that you were entitled to the extra £1,000; I proceed on the basis that, giving you the benefit of the doubt as I feel I should, you added the £1,000 to that cheque in circumstances where, although you considered that you were entitled to it, you did not want to approach the trustees to ask for a further £1,000 or to ask them to countersign or initial any alterations to the cheque because you would have the chore to explain to them how the amount suddenly jumped from £862.50 to £1,862.50. Nevertheless it is plainly an offence which no solicitor should even contemplate let alone commit. I take into account your background and indeed the financial pressures upon you as Miss Forshaw has pointed out. After a trial lasting around a fortnight with an indictment containing 25 counts and you having only been convicted on Count 5, I am of the view that I can take an exceptional course here, given in particular the punishment which will inevitably fall upon you by reason of the mere fact of conviction.”
[13]Those observations of the trial judge carry particular weight because he had heard all relevant evidence over the course of a 4 week trial.[14]Following that conviction both Mr Salsbury and, subsequently, the Sussex Police reported the matter to the Law Society. As a result disciplinary proceedings were commenced. Part 3. The Disciplinary Proceedings[15]On 14 February 2007 Mr Venables, the adjudicator, decided to refer Mr Salsbury’s conduct to the Solicitors Disciplinary Tribunal. The matter came to a hearing before the Tribunal on 18 December 2007. Both the Law Society and Mr Salsbury were represented. The evidence before the Tribunal included the sentencing remarks of Judge Stow, Mr Salsbury’s letters to the Law Society explaining his conduct and all other relevant documents. Mr Salsbury admitted that he had been guilty of conduct unbefitting a solicitor but contended that the appropriate penalty was one of suspension rather than striking off. The Tribunal rejected that contention and ordered that Mr Salsbury be struck off the Roll of Solicitors. The Tribunal also made an order for costs in terms which had been agreed between the parties.[16]The Tribunal stated the reasons for its findings as follows:
“25. The Tribunal considered the matters before it with an element of sadness. The Respondent had been guilty of an act of great stupidity when he sought to increase a cheque payable to him by a figure of £1,000.00. The Tribunal accepted the Respondent’s explanation that the amended figure was properly the sum due to him but he nevertheless had been convicted of a criminal offence involving dishonesty. 26. The Tribunal recognised that as a result of this act of stupidity the respondent had already suffered a great deal. 27. The Respondent had very properly admitted the allegation, and the matter with which the tribunal had to grapple was the question of the appropriate sanction to be imposed upon the Respondent. The tribunal gave very careful consideration to all of the submissions made on behalf of the Respondent but it had to recognise that the fortunes of an individual did not carry as much weight as the need to protect the good reputation of the solicitor’s profession. The solicitors’ profession collective reputation for trustworthiness was its most valuable asset and the tribunal concluded that the public’s perception of the profession’s absolute trustworthiness would be damaged if a solicitor convicted of a criminal offence involving dishonesty were not to be made subject to the ultimate sanction. 28. The Tribunal concluded that it was both appropriate and proportionate to order that the Respondent be struck off the Roll of Solicitors.”
[17]Mr Salsbury appealed against the Tribunal’s decision to the High Court pursuant to section 49 of the Solicitors’ Act 1974. The appeal was heard on 18 March 2008 by the Divisional Court of the Queen’s Bench Division, comprising Lord Justice Dyson and Mr Justice Lloyd Jones. The Divisional Court allowed Mr Salsbury’s appeal. The court set aside the order for striking off and substituted an order for 3 years suspension.[18]The Divisional Court rejected the contention that the Tribunal had failed to take into account the individual circumstances of Mr Salsbury’s case. The Divisional Court rejected the contention that the Tribunal had approached the question on the wrong basis. Nevertheless the Divisional Court concluded that the order made by the Tribunal was excessive and disproportionately harsh; see paragraphs 17 and 23 of the judgment of Mr Justice Lloyd Jones, with whom Lord Justice Dyson agreed. The core reasoning of the Divisional Court was set out in paragraphs 21-23 of the judgment of Mr Justice Lloyd Jones as follows:
“21. However, to my mind, there is force in the submissions made by Mr Broatch on behalf of the appellant in relation to the precise nature of what occurred in this case. I emphasise that this was an offence of a very unusual nature. It is an offence of dishonesty. The dishonesty, however, lies in that, by deception, this appellant caused the paying bank to believe that the cheque which he tendered was a good and proper order for the payment of £1,862.50 when it was not. The alteration was made and the cheque tendered in circumstances where, as the judge accepted, the appellant believed that the altered sum on the cheque was due and owing to him. Moreover, as the tribunal accepted, that altered sum was in fact due and owing to him. These wholly exceptional facts seem to me to bring this case right to the very bottom of the scale of dishonesty. 22. Altering this cheque was, of course, a very wrong thing to do. Nevertheless, having regard to the approach which this court now adopts, as formulated in Langford and the other authorities to which I have referred, it does seem to me that there must be a small residual category of cases of dishonesty where striking off may not be appropriate. After giving this matter anxious consideration, I have come to the view that this case falls within that very small residual category. I am fortified in that conclusion when I have regard to the personal mitigation which applies in this case. I appreciate that this is not a weighty factor in cases of its kind for the reasons given by the Master of the Rolls in Bolton. Nevertheless, I do bear in mind that while the professional consequences in any case of this sort will inevitably by catastrophic, the personal consequences in the private life of this appellant have been particularly grave. 23. Having regard to all of these considerations, I have come to the conclusion that the order made by the tribunal was excessive and is proportionately harsh, and for my part I would propose to set aside that order and to substitute an order for 3 years’ suspension.”
[19]The Law Society was aggrieved by the decision of the Divisional Court and accordingly appeals to the Court of Appeal.

Part 4. The Appeal to the Court of Appeal

[20]The Law Society appeals against the decision of the Divisional Court on three grounds namely: i) The decision was inconsistent with authority ii) The Divisional Court erred in identifying Mr Salsbury’s case as an exceptional one. iii) The Divisional Court’s decision is likely to have the effect of lowering the tariff in respect of penalties imposed by the Tribunal in dishonesty cases.[21]I shall begin by addressing the first ground of appeal. The leading authority in this field is Bolton v Law Society [1994] 1WLR 512. In this case a solicitor acting in a transaction for the sale of a house received a sum advanced to the prospective purchaser by a Building Society. Instead of retaining the sum in his client account he disbursed the money in anticipation of completion. The sale was not completed and security documentation in the Building Society’s favour was never executed. On investigation by the Solicitors Complaints Bureau the shortage on the client account was discovered and promptly made good by the solicitor. In January 1991 the matter was referred to the Solicitors Disciplinary Tribunal which found that the solicitor’s conduct, whilst not deliberately dishonest, was naïve and foolish, and that although such conduct would normally be regarded very seriously so as to merit being struck off the Roll, in the circumstances the appropriate penalty was suspension from practice for 2 years. The Divisional Court on appeal quashed the order for suspension and substituted a fine. The Court of Appeal held that the Divisional Court had erred and ought not to have interfered with the decision of the Solicitors Disciplinary Tribunal. Sir Thomas Bingham Master of the Rolls (with whom Lord Justice Rose and Lord Justice Waite agreed) endorsed the following statement of principle made by the Privy Council when that body dealt with disciplinary appeals:
“It would require a very strong case to interfere with sentence in such a case because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct”
The Master of the Rolls then stated the guiding principles as follows: “It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness…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 than 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 has 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 the 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 but denied re-admission. If a member of the public sells his house, very often his largest asset, 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 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 be 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 part of the price.” (See pages 518-519)[22]Similar statements or principles are to be found in other authorities which have been cited to this court. There is however no need to go through those decisions, which either foreshadow or alternatively adopt the reasoning of the Court of Appeal in Bolton.[23]Bolton was decided some 7 years before the Human Rights Act 1998 came into force. A number of more recent decisions have touched upon the impact of the Human Rights Act upon the principles governing appeals from professional disciplinary tribunals.[24]In Ghosh v General Medical Council [2001] UKPC 29; 2001 1WLR 1915 the Privy Council dismissed a doctor’s appeal against a decision that her name be erased from the register. In relation to the proper approach of the Board, Lord Bingham said this at paragraphs 33-34:
“33. Practitioners have a statutory right of appeal to the Board under s.40 of the Medical Act 1983, which does not limit or qualify the right of the appeal or the jurisdiction of the Board in any respect. 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 recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes. 34. 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…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 council 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 in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration.”
[25]In Preiss v General Dental Council [2001] UKPC 36; [2001] 1WLR 1926 the Privy Council allowed a dentist’s appeal against a decision of the Professional Conduct Committee of the General Dental Council to the effect that he be suspended for 12 months. Lord Cook delivering the judgment of the Privy Council said this: 27. “Since the coming into operation of the Human Rights Act 1998, with its adjuration in s 3 to read and give effect to legislation, so far as it is possible to do so, in a way compatible with the Convention rights, any tendency to read down rights of appeal in disciplinary cases is to be resisted. In Ghosh v TheGeneral Medical Council(Privy Council Appeal No 69 of 2000; 18 June 2001) the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past. An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in Libman v General Medical Council [1972] AC 217,[1972] 1 All ER 798, at p 221 of the former report, suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread. That observation has been applied from time to time in the past, but in their Lordships’ view it can no longer be taken as definitive. This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters. But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances. In the instant case the weaknesses already identified in the dental disciplinary structure and the failure to comply with r 11(2) go to diminish any reluctance that the Board might otherwise have in differing from the PCC. Against this background the Board now gives its own opinion on this case.”[26]In Langford v Law Society[2002] EWHC 2802 (Admin) the Divisional Court upheld an order of the Solicitors Disciplinary Tribunal that a solicitor be struck off the Roll because a number of breaches of the Solicitors Accounts Rules 1991.

Lord Justice Rose ( with whom Mr Justice Fulford agreed) said this about the approach of the court:

“The classic authority as to the approach of this court is Bolton v Law Society [1994] 1 WLR 512. (To a passage in the judgment 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 MedicalCouncil [2001] 1 WLR 1915 and MacMahon v Council of theLaw Society of ScotlandSLR 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 into force of the Human Rights Act.”
Lord Justice Rose then referred to passages in Ghosh and Preiss (which I have already quoted) and stated that the Divisional Court should adopt a similar approach to the instant appeal concerning a solicitor.[27]In Burrowes v Law Society [2002] EWHC 2900 (Admin) the Divisional Court quashed a decision that the appellant solicitor be struck off the Roll. In relation to the approach of the court,

Lord Justice Rose (with whom Mr Justice Fulford agreed) said this at paragraph 19:

“The need for a Disciplinary Tribunal to uphold the integrity and probity of solicitors, by imposing appropriate penalties, is one to which Sir Thomas Bingham, MR, referred in the course of his judgment in Bolton v The Law Society. That is a matter which holds good today as much as it did in 1994, despite the modification to the test resulting from Ghosh and Preiss, to which I have referred.”
In Nahal v The Law Society [2003] EWHC 2186 (Admin) the Divisional Court reaffirmed that the Master of the Rolls’ judgment in Bolton remained the classic exposition of the principles which the Solicitors Disciplinary Tribunal and, on appeal, the court should apply. Mr Justice Gibbs (with whom Lord Justice Dyson agreed) added that the Human Rights Act 1998 in no way disturbed or qualified the principles themselves. However it might affect the general approach of the court to an appeal of this kind.[28]In Bultitude v The Law Society [2004] EWCA Civ 1853 the Court of Appeal allowed an appeal by the Law Society against a decision of the Divisional Court and reinstated the original decision of the Solicitors Disciplinary Tribunal that a solicitor be struck off the Roll by reason of dishonesty. In relation to the approach of the court,

Lord Justice Kennedy said this at paragraph 45:

“I accept that for the reasons set out by the Divisional Court in Langford v Law Society [2002] EWCA 2802 (Admin), the approach of the court to decisions of the Solicitors Disciplinary Tribunal is not quite as it used to be. But we can, and in my judgment should, take cognizance of what the profession regards as the normal necessary penalty to be imposed upon those found to have acted dishonestly.”
[29]Newfield v The Law Society [2005] EWHC 765 (Admin) was a case in which a solicitor unsuccessfully appealed to the Divisional Court against an order that he be struck off the Roll. At paragraph 47 of his judgment Mr

Justice David Steel (with whom Lord Justice Laws agreed) stated:

“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.”
[30]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 of 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 and 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. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)[31]With the benefit of this guidance from the authorities I now return to the first ground of appeal, namely that the Divisional Court’s decision was inconsistent with authority.[32]The Divisional Court began, correctly, by examining whether the Solicitors Disciplinary Tribunal had(a) approached the sentencing exercise in the correct way and(b) taken into account the relevant factors. The Divisional Court concluded that the answer to both of these questions was yes. See paragraphs 15 and 16 of the judgment of Mr Justice Lloyd Jones.[33]The Divisional Court then went on to consider whether it agreed with the Tribunal’s conclusions. At paragraph 17 Mr

Justice Lloyd Jones said this:

“However, that is not the end of the matter because in hearing this case we are exercising an appellate jurisdiction, not a supervisory jurisdiction. It is therefore appropriate to consider whether in all the particular circumstances of this case the order was excessive or disproportionately harsh. I have come to the conclusion that it is.”
Mr Justice Lloyd Jones then developed and explained this conclusion in paragraphs 21 and 22 of the judgment, which have been quoted in part 3 above.[34]Mr Williams QC submits that at this stage the Divisional Court erred in law. The Tribunal’s decision was in line with the principle stated in Bolton, whereas the Divisional Court’s decision was not. He points out that the Mr Salsbury’s conduct in tampering with a cheque in favour of himself so as to increase the amount payable by £1,000 was a serious act of dishonesty. Such conduct should attract the normal sanction for dishonesty, namely striking off: see Bolton at pages 518-519. Such conduct cannot possibly fall into the small residual category of cases where, despite dishonesty, a solicitor is not struck off.[35]Mr Broatch on the other hand, on behalf of Mr Salsbury, prays in aid the particular features of this case, in particular the fact that Mr Salsbury correctly believed that a further £1,000 was due to him: see the sentencing remarks of Judge Stow and paragraph 25 of the Tribunal’s decision. Mr Broatch submits that the circumstances of this case were exceptional. Accordingly the Divisional Court were right to conclude that this case fell into the small residual category where striking off was not appropriate.[36]On this issue I prefer and accept the submissions of Mr Williams. Although the cheque has not been produced to us, it is clear that Mr Salsbury amended both the words and figures on the cheque with sufficient skill to deceive the bank. He was convicted of an offence contrary to 15A of the Theft Act 1968 following a plea of not guilty. Mr Salsbury’s conduct amounted in substance to forgery. If a solicitor is entitled to payment for work which he has done, the proper course is to inform his client of that work and to request payment. To secure payment in this case by tampering with a cheque previously signed by or on behalf of the trustees was a gross breach of professional conduct. Solicitors are, as a matter of routine, entrusted with and handle large sums of money on behalf of their clients, frequently in the form of cheques. If a solicitor abuses his right of access to those funds, that is a breach which undermines public confidence in the profession in a vital respect.[37]In my view, the Divisional Court fell into error in holding that there were exceptional facts which brought this case to the very bottom of the scale of dishonesty. The Court also erred in concluding that this case fell into the very small residual category where striking off was not appropriate. On the contrary, this was a case of serious dishonesty by the solicitor, where the normal consequences should follow. The Solicitors Disciplinary Tribunal quite properly took into account the particular circumstances of this case, but nevertheless concluded that striking off was both appropriate and proportionate.[38]In my view the Solicitors Disciplinary Tribunal’s decision was correct, both in law and on the facts. However, even if the case were regarded as being on the borderline, the Divisional Court was not entitled to interfere with the sentence imposed. The Court ought to have paid proper respect to the decision of the Tribunal, which was an expert and informed body, particularly well-placed to assess what measures were required to deal with Mr Salsbury and to protect the public interest. The Divisional Court could not be satisfied that the sentencing decision reached by the Tribunal was clearly inappropriate.[39]In those circumstances I conclude that the Law Society’s appeal should be allowed on the first ground. The second ground merges with the first ground and does not require further consideration.[40]The third ground of appeal is focused up on the wider implications of the Divisional Court’s decision. For present purposes it is not necessary to explore those wider implications.[41]Let me now draw the threads together. For the reasons set out above, I would allow the Law Society’s appeal on the first two grounds and reinstate the order for striking off made by the Tribunal. Lady Justice Arden[42]I agree with the judgment of Lord Justice Jackson and with the judgment of the President of the Family Division, which I have read in draft.

Sir Mark Potter P

[43]I too would allow this appeal for the reasons set out by Lord Justice Jackson. In the context of the protection of the public and the maintenance of its expectations of probity on the part of a solicitor, I find myself at odds with the observation of Lloyd Jones J that the offence in this case was at “the very bottom of the scale of dishonesty”. It was forgery of a cheque in favour of the appellant and involved dishonesty both vis-à-vis the bank and the trustees who the appellant was well aware had neither authorised nor assented to the payment. As such it was an offence which, as the trial Judge put it, “no solicitor should even contemplate let alone commit”. In passing the sentence, he further observed that he would take “an exceptional course” in the light of the punishment “which will inevitably fall upon you by reason of the mere fact of conviction”. No doubt that was a reference to the expectation that the appellant would be struck off. That being so, and bearing mind the importance of the Tribunal’s function of maintaining the reputation of the solicitors profession and sustaining public confidence in its integrity (see Bolton), I do not consider that the Divisional Court was justified in regarding the penalty imposed by the Tribunal as excessive or disproportionate.

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