Ndjoli (A Solicitor), Re [2008] EWCA Civ 585

[2008] EWCA Civ 585

ON APPEAL FROM THE LAW SOCIETY

Venue Royal Courts of Justice

Strand

London, WC2

Date Tuesday, 7 th March 2008

B E F O R E:

SIR ANTHONY CLARKE

(THE MASTER OF THE ROLLS)

IN THE MATTER OF THE SOLICITORS ACT 1978

RE A SOLICITOR

No. 12 of 2008

A.NDJOLI

(DAR Transcript of

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THE APPELLANT APPEARED IN PERSON.

MR I MILLER (instructed by The Law Society) appeared on behalf of the Respondent.

Judgment

Sir Anthony Clarke MR:

[1]This is an appeal by Mr Ndjoli from a decision of the Solicitors Regulation Authority, (“the SRA”) dated 6 November 2006, to refuse him student enrolment under Regulation 6(4)(i) of the Training Regulations 1990 (“the 1990 regulations”). That decision was upheld by the SRA on 2 November 2007 on a review brought by Mr Ndjoli. The present appeal is brought under Regulation 6(4)(ii) of the 1990 regulations.

[2]Mr Ndjoli obtained a law degree from Middlesex University in July 2006. He then commenced the legal practice course at BPP (Holborn) University in September 2006. Earlier that year in March 2006 he had applied for student enrolment with the Law Society. He was required to do so because no individual may attend a legal practice course without having what is called a Certificate of Enrolment, ie a Certificate of Enrolment as a student member of the Law Society; see regulation 5 of the 1990 Regulations. In his application for student enrolment Mr Ndjoli disclosed a conviction or convictions dated 24 April 2003 on three counts of benefit fraud under Section 111A of the Social Security Administration Act 1991. Following guilty pleas on each count he was sentenced to 60 hours community service on each count concurrently. The offences for which he was convicted occurred, according to the document evidencing his pleas and the sentence, on 28 January 2001, 8 January 2002 and 22 January 2002. Mr Ndjoli was asked to explain the background to his offences and in accordance with usual practice he was asked to attend before the adjudicator to explain the position. He wrote a letter to the SRA, dated 24 March 2006, in which he gave an account of the relevant events. However, he says that he was under some pressure when he wrote the letter and that the letter contained some mistakes. In particular it states that it was in June 2001 that his wife called him to say that she was no longer able to look after the children, whereas he simply says that that should have been June 2000.

[3]The account which he gave to the adjudicator was, broadly speaking, as follows. In 1999 he and his wife separated, which resulted in him leaving the matrimonial home. Their five children remained with their mother and her new partner. In June 2001 he returned to the family home in order to look after his children, his wife and her partner having left it because she was no longer able to look after the children. In order to look after his children he had to give up full time work. Subsequently he applied for benefit. In or around October 2001 his wife moved back into the matrimonial home and he once again moved out. Having moved out a second time Mr Ndjoli left his benefit book with his wife, who appears to have informed him that, now that she would be looking after the children, she would be entitled to benefit and would change the details in the benefit book; that is, she would ensure her name was substituted for his. Mr Ndjoli returned to work at this time. His wife did not, however, change the details, nor did he inform the social security offices of the change of circumstances. Benefit continued to be drawn. Mr Ndjoli had already explained this, in the letter to which I have referred, as an act of carelessness on his part for which he was convicted and sentenced, according to the letter at least, to 20 hours community service. It was in fact 60 hours, so that for some reason the letter was wrong in that respect. That is not, however, a point of any real importance.

[4]The interview with the adjudicator took place on 30 October 2006. In the interview Mr Ndjoli expressed the view that he had only committed one offence and that the reference to the three convictions in the magistrates’ court’s document was incorrect. Following this interview the adjudicator refused Mr Ndjoli student membership in a decision dated 6 November 2006. She gave these reasons:

“Although there is no evidence that Mr Ndjoli directly benefited from the continuing claim to benefit he was under a duty to ensure that the Department of Work and Pensions were aware that his entitlement to benefit had ceased. Further, the three offences of benefit fraud which occurred in 2001 and 2002 and to which Mr Ndjoli pleaded guilty are serious offences of dishonesty. Having considered the evidence Mr Ndjoli gave at interview, his letter of appeal and references supplied on his behalf, I am not persuaded that Mr Ndjoli has the level of honesty, integrity and professionalism expected by the public and fellow members of the profession. Mr Ndjoli’s application for student enrolment is therefore refused.”

[5]That decision was upheld by the Law Society’s review panel on 2 April 2007. In dismissing Mr Ndjoli’s appeal the panel said this:

“In April 2003 Mr Ndjoli was convicted of making false representations in order to obtain benefit. The panel considered this to be a borderline case. However the panel recognised the seriousness of the conviction noting that the offences to which Mr Ndjoli pleaded guilty occurred over a period of one year and for which he received a community-based penalty. The panel was unable to go behind the conviction, notwithstanding Mr Ndjoli’s explanation. The panel took into account Mr Ndjoli’s personal circumstances at the time, but were not satisfied they amounted to exceptional circumstances. The panel also considered that insufficient time had elapsed since the date of the offences and the date of Mr Ndjoli’s conviction to demonstrate that sufficient rehabilitation had taken place. In all the circumstances the panel was not satisfied that it was appropriate to allow Mr Ndjoli’s application for student membership to proceed.”

[6]Mr Ndjoli made a number of submissions in documents submitted to me in support of his appeal. In those documents the points he took were these in summary. 1) He disclosed his convictions at the first opportunity to the Law Society and he emphasises his sincere remorse in respect of having convictions for offences of such seriousness. 2) Four years have now elapsed since his conviction for offences which arose through “unintentional claim of income support” made “in order to support his family”. He further submits that he did not personally benefit from the offending, which arose due to his wife’s negligent failure to ensure her name was substituted for his on the benefit form. 3) He has had to overcome a difficult family background which saw him evacuate his family from the Congo in 1991, work almost full time as a taxi driver while pursuing his law degree. He also relies on a number of references submitted in support of his application. I have indeed read the references which he submitted.

[7]In the written submissions in response, the submissions made by the SRA may be summarised in this way. 1) Mr Ndjoli pleaded guilty to offences of dishonesty which occurred over a 12 month period. Such offences are particularly serious in the context of prospective and/or practising solicitors, who are expected to be “persons of integrity, probity and trustworthiness” who can be “trusted to the ends of the earth”. In such circumstances it would only be permissible to allow Mr Ndjoli entry into the profession where exceptional circumstances existed; see Jideofo v The Law Society

[2007] EWCA Civ 3

at 21. 2) There are in this case no exceptional circumstances justifying the grant of student enrolment. In support of this the SRA notes the discrepancies between Mr Ndjoli’s account of the circumstances giving rise to the offences and the actual dates when the offences took place. Mr Ndjoli has maintained that the offences only took place after he left the family home for the second time in October 2001, whereas the first offence for which he was convicted occurred in January 2001. It could also be noted that on his own account Mr Ndjoli did not give up full time work until June 2001. The SRA further notes the discrepancy between the 60 hour community service order and the 20 hours referred to in the letter. 3) While it is correct to say that Mr Ndjoli did disclose his conviction on application to the Law Society, there were and remain inconsistencies between his account of the offending and the offences for which he was convicted. In the light of those discrepancies the SRA submits that Mr Ndjoli demonstrates a lack of appreciation of the seriousness of his conviction. 4) Mr Ndjoli’s explanation that his “unintentional claim” for benefit was done to benefit his family does not provide evidence of his rehabilitation, nor does the fact that four years have elapsed since his conviction. 5) The contents of Mr Ndjoli’s references supplied in support of his application appear to demonstrate that not all of his referees were aware of his conviction.

[8]That was the position on the basis of the materials which were available to me before the matter came on for hearing on Tuesday of this week. For reasons which were beyond Mr Ndjoli’s control or indeed the control of anyone else, it was not possible to complete the hearing on Tuesday and I have heard further submissions from Mr Ndjoli today. Indeed, in the light of some of the difficulties raised by the Law Society as to the apparent discrepancies between Mr Ndjoli’s accounts and the adjudicator and the Certificates of Conviction, I asked Mr Ndjoli to spell out the position in some detail and he has done that, partly in a document entitled “List of Sequences and Events and Dates Leading to my Conviction”, which he sent to me yesterday, and partly in the course of his oral presentation this morning; and the account which appears from all that is in some ways somewhat different from the account which he gave to the adjudicator. I think Mr Ndjoli would say that the reason for that is that when he was interviewed by the adjudicator he was simply asked particular questions and that the occasion did not arise to put the matter as fully as he has now put it.

[9]But if I have understood the position as he now puts it correctly from both the documents and what he has told me orally, it can be summarised in this way. He had matrimonial difficulties which started in 1999. In the course of 2000 he became aware of an extra-marital affair which his wife was having with someone who had been a friend of his, and in June 2000 she decided to move out in order to live with her then boyfriend or partner. Mr Ndjoli and his wife at that time had five children. I should interpose to say that since these events, I think since about 2003, he and his wife have been living together and indeed he now has six children. In any event a few weeks later, that is to say a few weeks after June 2000, probably in July 2000, she came back, saying that her relationship with her boyfriend had come to an end. However, in November of the same year she moved out again, saying there was a need for her to clear her mind and that she may not come back.

[10]Mr Ndjoli had been working for Harrods but when his wife left and he had to look after his children, at some stage, although I am not sure precisely when, he says that he stopped working at Harrods and that Harrods said that they would keep his job open for some three months. After his wife left, he, Mr Ndjoli, looked after his children but he was also assisted by a 17 year old boy who he looked after as his son, although he was in fact his brother. Sometime at about the end of November 2000 he went to the benefit agency to make a claim for income support, knowing that his wife might not be coming back after all. That was the time, he says in his document, that his employment with Harrods ceased and it was then that he was told that they would keep his job open for three months. At that time he was advised not to claim income support but instead to claim jobseekers allowance, because, as he put it, he was an able-bodied person.

[11]He told me this morning that having left Harrods employment in about November 2000, he did not in fact go back to Harrods until some time in 2002, and after the events covered by the offences with which I am concerned. Thus he asserts that at no time was he working for Harrods and claiming income support at the same time.

[12]The Memorandum of Convictions shows that the first offence to which Mr Ndjoli pleaded guilty occurred on 28 January 2001. One of the difficulties facing Mr Ndjoli is that in the account that he gave to the adjudicator he did not give any explanation for the offence of 8 January 2001, although the Memorandum states that he pleaded guilty to a charge that he dishonestly made a false statement in an income support claim form, namely that he did not declare that he was working for Harrods when in fact he was. At any rate he accepts that he did put in a claim form for income support on, he says, 8 January 2001. He did so, he said, because he was looking after five children and there was no chance that he would be able to go back to work in the near future. However, in the same month, possibly in the middle of January 2001, his wife came back for a few days, but after a few days she said that she did not think that she could live with him again as husband and wife and that she was going to live with a friend. Mr Ndjoli says that as far as he was concerned that was actually the end of their marriage, thus it was that on 28 January 2001 he rang the benefit agency to make a fresh claim for income support.

[13]It is in respect of the claim made on 28 January 2001 that the first of the three counts was brought. What he has told me this morning, although he did not explain this in his document, was that when he spoke to the benefit agency on the telephone he was not obviously able to fill out an income support form, so that that form was filled in by the person at the benefits agency based upon what Mr Ndjoli told him or her. Mr Ndjoli says that he told the person at the agency what the true position was, that he had been working for Harrods but was no longer; however, unfortunately, Mr Ndjoli says, the person at the benefit agency made a mistake and did not correctly state what Mr Ndjoli had told them. He told me that some time shortly after that the form was sent to him and he signed it, but that he did not take care when signing it and did not notice the error. However that may be, as I understand it from what he told me, he claimed benefit in the form of income support from 28 January 2001 until some time in June 2001, when his wife came back out of the blue saying that she could not live without her children.

[14]However, shortly after that, in either June or July 2001, Mr Ndjoli moved out because he says that they could not be reconciled and that that was his way of protecting his children. When he left, he says, he left many of his documents with her, including the benefit documents, as indeed he had told the adjudicator; and his wife claimed benefit using his benefit book, much as he had explained to the adjudicator.

[15]In the document he provided yesterday he says that in November 2001 he was informed by his wife during one of his brief visits to his children that the benefit agency wanted to interview him. That interview, he says, took place in December 2001, where he was informed of charges, or at least a charge, and the circumstances in which it occurred. That is the end of the account in the document; however, the problem is that the second and third offences to which he pleaded guilty, which were also offences of dishonesty, took place, according to the Memorandum of Conviction, on 8 and 22 January 2002. Now that is difficult to fit in with the account in the document because those dates are self-evidently after December 2001 when the interview to which he has referred took place.

[16]In all these circumstances Mr Ndjoli’s explanation for the conviction based on the events of 28 January 2001 is one which was not, as I say, advanced before the adjudicator but is in short this. He says that he was advised by his solicitor that if he was convicted, which he might well be on the basis that he had signed the income support form containing the error to which I have referred --I could well understand that if that is so that would make it very difficult for him to defend the allegations successfully. He says that it was explained to him by his solicitor that he might receive a custodial sentence. He decided to plead guilty and was sentenced to 60 hours community service, as I have indicated. But one thing is quite clear, namely that the explanation for the events of 28 January is not that his wife was claiming the income support -- he accepts that it was he who was claiming the support -- but that he says that he did not act dishonestly, that he did tell the benefit agency the truth, but unfortunately signed the form when it was sent back to him without looking at it clearly enough.

[17]As to the offences of 8 and 22 January, his difficulty is that the dates of those offences are not consistent with the account he gave to the adjudicator, which was that it was his wife who was claiming the benefit after he left in June or July 2001. As he explained it to me, those were all claims being made in the latter part of 2001, whereas these are in the early part of 2002 and were after he had his interview with the benefit agency; and so what he says is, well, these dates on the Memorandum of Conviction must be wrong. And indeed he points to the fact that in a report made by a probation officer on 27 March 2003, although the first offence is correctly stated as dishonestly making a false statement on 28 January 2001, the description of the other two “false representations” as having occurred on 08/01/01 and 22/01/02 are not correct. In fact I think it is quite clear that there is a mistake in the probation officer’s report and that 08/01/01 should be 08/01/02 whereas 28/01/02 is correct.

[18]What in fact happened was that the matter came before the court on 27 March 2003, before the Acton Magistrates’ Court, and the court, it appears, was concerned that Mr Ndjoli did not understand the full position and as a result he saw a probation officer who was concerned that Mr Ndjoli was not legally represented and he thought it was not appropriate for him to prepare a full report at that stage and he requested an adjournment for Mr Ndjoli to seek legal advice and for him to be provided with the DSS prosecution documents. Well Mr Ndjoli did seek legal advice and the matter came back before the court on 24 April 2003 and it was on that occasion that he confirmed his plea on the basis of the advice of his solicitor and was sentenced, as I have indicated, for the three offences including those committed in January 2002.

[19]Now, it can immediately be seen that the picture is extremely confused, and that on the material I have it is very difficult to accept that Mr Ndjoli at the time did not appreciate that he was pleading guilty to three counts of dishonesty. He is plainly a man of some considerable intelligence. He knew that it was unlawful to make claims while he was working. He now says he was not doing that. However, the difficulty is that the documents show that he pleaded guilty to these offences and the account which I have given, which I hope is an accurate account of the way the matter has developed, does not make one confident that his account is correct.

[20]In considering whether to allow this appeal, I must of course have regard to the relevant principles that apply to this part of the case. I recently considered them in the case of Jideofo, to which I have referred, where I said this:

“16. In his written submissions on behalf of the Law Society and both the Begum and Evans cases Mr Mark Pardoe submits: i) that the test of character and suitability is a necessarily high test; ii) that the character and suitability test is not concerned with ‘punishment’, ‘reward’ or ‘redemption’, but whether there is a risk to the public or a risk that there may be damage to the reputation of the profession; and iii) that no one has the right to be admitted as a solicitor and it is for the applicant to discharge the burden of satisfying the test of character and suitability. 17. Neither Miss Evans on her own behalf nor Mr Colbey on behalf of Miss Begum submitted that those propositions were not correct. They were, in my opinion, correct to accept them. The points made on behalf of both appellants were rather that each case must be considered on its own facts and that, on the facts of a particular case, different considerations may apply to a solicitor on the one hand and a young and inexperienced student on the other. I accept the submission that the facts of individual cases are critical. Much depends on the nature of the wrongdoing, dishonesty or other untoward conduct and upon the particular part played in it by the person concerned. This is I think especially so in considering whether the reputation of the profession would be damaged by admission or re-admission. Thus offences of dishonesty have been correctly regarded as of the greatest importance. The reputation of the professional relies upon the honesty and good faith of its members. As Sir Thomas Bingham MR put it in Bolton, in cases of proven dishonesty the solicitor will almost always be struck off, however strong the personal mitigation. Moreover, it was in this context that he used the striking phrase that the purpose of the strict approach in Bolton is to maintain the reputation of the profession as one in which every member of it, of whatever standing, may be trusted to the ends of the earth. Thus, a solicitor who is struck off for dishonesty may well not be re-admitted however much he can show that he is no longer a risk to the public.” “18. The importance attached to dishonesty has recently been emphasised by the decision of the High Court in The Law Society v Claire Wilson [2006] EWHC 1022 (Admin) (‘Wilson’).”

I then referred in some detail to the reasoning in Wilson, and finally I added in paragraph 21: “In the light of Bolton and the summary of its application in Wilson it is clear that, when assessing whether an individual has the requisite character and suitability to be admitted as either a student member of the Law Society or a solicitor, it will be rare for a person with convictions of dishonesty to be found to have the requisite character. Personal litigation, while a fact for consideration, will not weigh heavily in carrying out that assessment exercise. Much depends, however, upon the nature of any dishonesty and rather different considerations seem to me to apply in the absence of dishonesty: see eg Shuttari v The Law Society

[2007] EWHC 1484 (Admin)

. I should also add that Bolton does allow for the possibility that exceptional circumstances might exist which would justify an individual being re-admitted to the profession following a strike-off, even after findings of dishonesty.” i) that the test of character and suitability is a necessarily high test; ii) that the character and suitability test is not concerned with ‘punishment’, ‘reward’ or ‘redemption’, but whether there is a risk to the public or a risk that there may be damage to the reputation of the profession; and iii) that no one has the right to be admitted as a solicitor and it is for the applicant to discharge the burden of satisfying the test of character and suitability.

[21]In the light of these principles the starting point for assessment is the fact that Mr Ndjoli has three convictions for benefit fraud. His offending therefore clearly falls within the category of cases where it would be rare for the SRA to find that he was of suitable character to be a solicitor. It is difficult to see how the review panel could conclude that this was a borderline case, given the offences for which he was convicted, and I would not agree with that description.

[22]I have explained in some detail the various accounts that Mr Ndjoli has given for these offences, and I regret to say that the picture remains extremely confused, and it appears to me that I could not possibly conclude, on the basis of the materials that I have seen, that these convictions for dishonesty were not properly made. Mr Ndjoli has not come anywhere near showing that they are in any way wrongful convictions. His account is in some ways extremely confused, and it appears to me that, whatever personal mitigation Mr Ndjoli may have, in the light of the principles to which I have referred I could not possibly allow this appeal. Mr Ndjoli is over forty years of age, I think, now, and he is not a young student or something of that nature but I recognise that he has a degree and that he has worked extremely hard and that he is now back together with his family, all of which is to the good. He could no doubt apply at some time in the future for enrolment but if he ever did he would have to provide a much more coherent account of the events of 2003, he would have to provide the relevant documents, he would have to provide the evidence of his wife, I think, so that the full picture could be seen evidenced by documents so that the person considering his application could have a full and detailed picture of precisely what occurred at the time. On the materials available to me, the decisions of the adjudicator and of the appeal panel were entirely justified. Certainly the SRA did not err in principle in any way.

[23]So the appeal is therefore dismissed.

Order

Appeal dismissed

Cited in 1 later judgment

Masrur (A Solicitor), Re 2009