Ali & Anor, Re Solicitors No 21 & 22 of 2007 [2008] EWCA Civ 769

[2008] EWCA Civ 769ON APPEAL FROM THE LAW SOCIETYVenue Royal Courts of JusticeStrandLondon, WC2Date Tuesday, 29 th April 2008B E F O R E:SIR ANTHONY CLARKE(THE MASTER OF THE ROLLS)
IN THE MATTER OF THE SOLICITORS ACT 1974RE A SOLICITORNo. 21 & 22 of 2007MS ALI AND MS NAEEM
(DAR Transcript 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)
MR T HUSSAIN appeared on behalf of Ms Ali.MS NAEEM appeared in person.MR I MILLER (instructed by The Law Society) appeared on behalf of the Respondent.
JudgmentIntroduction.
[1]These are two joined appeals from decisions of the Law Society. The appeals have been heard together because they arise out of the same factual background. The two appeals are Ali v the Law Society (No.21 of 2007) and Naeem v the Law Society (No. 22 of 2007). Both appeals are brought under Regulation 32 (3) (ii) of the Training Regulations 1990 (the 1990 Regulations). They are therefore appeals from decisions to revoke the appellants’ student membership of the Law Society.[2]Ms Ali appeals from the decision of the Law Society, dated 6 February 2007, to revoke her student membership of the Law Society. That decision was upheld on review by the Law Society Adjudication Panel on 20 August 2007. Ms Naeem appeals from a decision of the Law Society, again dated 6 February 2007, to revoke her student membership of the Law Society. That decision was also upheld on review by the Law Society Adjudication Panel, albeit on 20 July 2007.[3]In the present appeals both Ms Ali and Ms Naeem seek orders overturning the Law Society’s decision to revoke their student membership; both seek an order granting them or rather confirming their status as student members of the Law Society.

Factual Background

[4]Ms Ali was enrolled as a student member of the Law Society in April 2003. The following July she completed her law degree at the Bradford & Ilkley Community College. Ms Naeem was enrolled as a student member of the Law Society in May 2005; later that year she completed her law degree at Manchester Metropolitan University. Both Ms Ali and Ms Naeem commenced study on the legal practice course at BPP Law School in Leeds in September 2005.[5]During the course of their LPC studies they were both required to complete a practical legal research assessment; the PLR2/Written Assessment. This was a legal problem question, which required students to undertake legal research into what constituted, amongst other things, fraudulent trading and directors’ and auditors’ liability arising out of a company’s liquidation and then draft an advice to a notional client. The written assessment, or writing assessment part of the assignment, involved writing the relevant document in clearly comprehensible language which can readily be understood.[6]When handing in their work for assessment students were required to submit a “Student Submission Sheet”. This document contained on its face the following declaration:
“Declaration Please note the wording of the following declaration. It is effective without signing. Please do not underline or sign it. If you do sign it, you risk waiving your anonymity. I confirm that I have read and understood the Unfair Practices Code contained in the Course Handbook. I DECLARE to the Assessments Board that: This assessment is my own unaided work; I have not consulted with any person in any way about this assessment. I have checked the word count using Microsoft Tools Word Count function. The word count is set out in the box above. The whole memorandum, including all headings and the source list, does not exceed 1750 words. A false declaration constitutes both an academic and a professional offence.”
A false declaration constitutes both an academic and a professional offence.”[7]In addition to this, paragraph 11 of the Assessment Submission Instructions supplied by the BPP to its students drew their attention to the requirement to read chapter 10 of their Student Handbooks, which it referred to as dealing with Unfair Practices and the declaration on the submission sheet. Paragraph 12 of the instructions, which is in bold, included this clear statement:
“This assessment must be your own unaided work.”
[8]Both Ms Ali and Ms Naeem completed the assessment and submitted with it a suitably completed Student Submission Sheet.[9]An issue arose as to whether Ms Ali, Ms Naeem and a third student I will call “S”, contrary to the declaration, colluded with each other in preparing their assessments. In other words an issue arose as to whether they cheated in completing their assessments.[10]The assessments were to be submitted on 10 April 2006. At 00:23 on 10 April 2006 Ms Naeem sent Ms Ali an email seeking assistance. It read:
“Hi Selma! I hope that I’m writing to the right person. Its Sham’s friend Zhenab. Hope you remember me -- we have the same PLR question. Don’t know if you will get the chance to read this, but if you can, please send me any tips you have. I don’t know anyone else doing this question and haven’t been able to discuss it properly with anyone. I would appreciate anything you say. Thank you lots. Zhenab.”
Thank you lots. Zhenab.”[11]Ms Ali did not respond to the email. On the morning of 10 April 2006 Ms Ali was in the BPP Library sitting at one of the computers. Ms Naeem sat next to her. They had a brief conversation in which Ms Ali appears to have informed Ms Naeem that she had not read her earlier email. Ms Ali had either already handed in her assessment or did so after speaking to Ms Naeem. She appears however to left a rough draft or drafts of her assignment on the desk where she was working in the library. The final page of Ms Ali’s draft was later found attached to Ms Naeem’s assessment when it was submitted. The attached sheet came to the attention of BPP’s examiner. BPP identified the attached sheet as Ms Ali’s work and, as is recorded in a “Cheating Offences Report” prepared by Ms Smart, the Course Director of its full-time LPC, “clearly some form of collusion” had been involved.[12]On 31 May 2006 Ms Ali and Ms Naeem were interviewed by BPP staff. Verbatim notes were taken. No copy of those notes is available; however a summary of what they said was contained in Ms Smart’s report. The report states that Ms Ali denied helping Ms Naeem, but that in the course of her explanation she admitted that she had asked another student to “check her assessment for legal writing”. The third student, S, had made draft amendments to her assignment, 80% of which had been incorporated into the final version which was submitted. When interviewed the third student admitted helping Ms Ali with what was described as the “writing element” of the assessment. I am not sure where Ms Smart got the 80% from since my perusal of the documents suggests that the true figure is 50%. That is probably not, however, of any real relevance.[13]When interviewed Ms Naeem explained that she had approached Ms Ali for assistance with her assignment. She is recorded as having admitted that she was worried about her word count and “whether she was on the right track”. That is, of course, consistent with the tone of her email to Ms Ali which asked for “tips” as she had not had a chance to discuss the assignment properly with anyone. Ms Naeem appears also to have suggested that Ms Ali offer to let her check her, that is Ms Ali’s, notes. She admitted that she did so and that the name of the case recorded on the final page of Ms Ali’s draft showed her that “she was clearly on the right lines”. She did not however make any consequent amendments to her assessment. Ms Ali’s draft page was said to have become attached to her assessment by accident.[14]Ms Naeem subsequently admitted breaching the rules against collusion. She was recorded by Ms Smart as being remorseful and as having accepted that it was a stupid thing to do. In summary the position relating to Ms Naeem was this. She admitted collusion both by asking Ms Ali for assistance in the email and by looking at the last page of a draft of Ms Ali’s assessment. It follows that she admitted making a false declaration because the declaration contains a declaration that she had “not consulted with any person in any way about this assessment”. On the other hand it can properly be said in Ms Naeem’s favour that she did not alter her own script as a result of her attempts to obtain assistance so that the work she submitted was her own. It must be said, however, that if Ms Ali’s work had suggested that hers was wrong she would presumably have changed it since that was the whole point of consulting Ms Ali.[15]I return to Ms Ali. BPP did not proceed against Ms Ali in respect of the allegation of collusion with Ms Naeem; it accepted her version of events, which was in effect that, although it appeared that Ms Naeem had used part of her draft script, she, Ms Ali, had not made it available to her. Ms Ali did however accept that she had breached the rules against collusion in respect of obtaining assistance from S. I will return to the nature of that assistance in a moment. Based on the students’ admissions they were recorded as having failed the assessment; the offences were recorded on their records; and the Law Society was informed of the offences, their admissions and the decisions taken by BPP.[16]Following notification of the incident the Law Society reviewed whether Ms Ali and Ms Naeem should remain student members. On 6 February 2007 Ms Ali’s student membership was revoked. It was revoked for these reasons:
“I [that is the Law Society adjudicator] accept that Ms Ali admits that she asked another student to proofread her assignment and she thought this was permitted as they had been able to do this in previous assessments. However, the External Exam Board had the benefit of interviewing Mrs Ali and found her guilty and in doing so stated that ignorance of the rules was no defence and further that an intention to cheat is not required by the Unfair Practices Code. The incident occurred after 3 ½ years of legal studies by which time students were well aware of the academic standards and rules. This offence, committed at this stage in her training, therefore casts doubt as to whether Mrs Ali is of suitable character to become a solicitor. I consider that this incident of cheating in the form of collusion with another student may indicate that Mrs Ali is a risk to the public and/or the profession and accordingly I have revoked her student membership.”
It should be noted that the “External Exam Board” did not interview Ms Ali. That must therefore be a reference to the interview with Ms Smart. Mr Miller correctly accepts on behalf of the Law Society that the adjudicator did not make a finding of dishonesty against Ms Ali. Ms Ali applied for a review of the decision by a panel and was interviewed by it.[17]It is plain from the tone of the interview, a note of which I have read, that the panel was sceptical about Ms Ali’s frankness. I should I think note one concern I have about the interview. The Chairman Mr Nigel Butcher said at the outset that the panel would not look at, that is review, the decision made by the course provider, which was, of course, BPP. That decision included its decision not to accuse Ms Ali of collusion with Ms Naeem. It will be recalled that that was because it accepted Ms Ali’s explanation in that regard. Yet Ms Ali was asked a number of questions relating to Ms Naeem.[18]The review panel upheld the decision of the adjudicator. It noted in its judgment that it was not satisfied that Ms Ali had been entirely frank about her involvement in the matter nor that she appreciated the seriousness of her deliberate act of cheating. However it is, I think, important to note that Mr Miller expressly, and to my mind correctly, conceded that the panel did not make a finding of dishonesty against Ms Ali. The panel noted that while she acknowledged that she was aware of the submission declaration, she sought to place the blame for her actions on BPP. By this it referred to Ms Ali’s contention that she and others had been informed by one of their tutors that it was advisable to have their work checked by another student. This was a suggestion that Ms Ali made when interviewed by the Adjudication Panel, as part of her explanation as to why S had, as she put it, only proof read her work. She denied in the course of that interview that S had made any handwritten alterations to her draft assignment. This statement was contrary to what she is recorded to have told BPP when first questioned about the matter on 31 May 2006. In that interview she is recorded as having stated that the handwritten comments on her draft assessment were made by S. However that may be, it appears to me to be plain that either S or Ms Ali made the annotations on the script.[19]Ms Ali went on to state during her interview with the Panel that other students had asked others to proof read their work in this way. She had previously raised the point that one of her lecturers had informed her and others that they should get a third party to proof read their work in her request for a review of the Adjudicator’s decision and in her written submissions to the Adjudicator. She had also raised this issue in her submissions to BPP when the initial matter arose and was being investigated, in an email dated 06 June 2006. She appears to have created her own PLR questionnaire, in which she raised the question whether students had been informed that they could ask a third-party proof reader to read their work. Of the six forms that she asked others to complete, four students indicated that they had been informed that they could seek this form of assistance. From the material I have seen these assertions do not seem to have been investigated either by BPP or indeed by the Law Society. They are however referred to in an email from Jenny Mills to Ms Ali, in which Miss Mills elaborated BPP’s external examiners’ reasons for finding that she had cheated in the exam. The text includes the following:
“…the Board unanimously approved the recommended penalty. However, I can tell you that the decision was that of 8 external examiners. One of them specifically said that it defeats the whole purpose of the Legal Writing assessment if someone else checks the work…”
I will return to this point in a moment.[20]As to Ms Naeem, the Law Society Adjudicator also reviewed her student enrolment on 6 February 2007. Her membership was revoked for these reasons:
“…Miss Naeem admitted fully the offence and was remorseful, and her references appear to be good. However, this incident occurred after 3 ½ years of legal studies by which time students are well aware of the academic standards and rules. This offence, committed at this stage in her training, therefore casts doubt as to whether Miss Naeem is of suitable character to become a solicitor. I consider that the incident in question may indicate that Miss Naeem is a risk to the public or the profession…”
[21]A review of that decision was dismissed by the Law Society Adjudication Panel on 20 August 2007. It did so on the ground that it considered that Ms Naeem was not entirely frank with it when it interviewed her. Nor was it convinced that she understood the serious nature of, as it put it, “her deliberate act of cheating”, a deliberate act which she had admitted. However, as in Ms Ali’s case there is no finding of dishonesty.[22]Ms Ali and Ms Naeem now appeal the Law Society’s decisions to revoke their student membership.

Submissions

[23]In her written submissions Ms Ali submits that the revocation of her student membership is unfair. She stresses that she was in no way involved with what she describes as Ms Naeem’s actions. She submits that she has been entirely frank about what occurred and that she does not seek to place the blame on others. On the contrary she fully accepts in her submissions that she was wrong to ask S to proof read her work. She did so by mistake, a mistake which she accepts was serious and for which she has only herself to blame. Her mistaken belief that it was permissible to ask a third party to proof read her work was however a genuine mistake. She stresses how she openly admitted what she did and had never attempted to conceal her actions. She further accepts that her conduct fell below the standard expected of a solicitor, but that she has tried to make amends. She made similar submissions to the Panel.[24]I have also now had the benefit both of a skeleton argument and of helpful oral submissions from Mr Hussain on Ms Ali’s behalf.[25]Ms Naeem has very capably represented herself this morning. In her written submissions she set out the factual background to the incident. She describes the nature of her current employment with Stockport Council as an Inclusion Support Officer, which is a responsible job. She stresses how the nature of her current employment has enabled her to mature as a person. She accepts that what she did, asking another student for help, was a ‘dire mistake’, albeit one which was a one off incident which had never happened previously and would not happen again. She realises that what she did was wrong.[26]She explains how she worked hard to complete her studies, acted as an adviser at BPP’s Legal Advice Clinic and had whilst at school volunteered for the local CAB, acted as a Youth Worker for a local charity and had been a member, as she still is I think, of the Restorative Justice Panel. She also relies now, and indeed then, on a number of references to which I will refer briefly in a moment. Finally she submits that, whilst she accepted the Law Society’s decision at the time, she feels that she should now be allowed readmission as a student member.[27]The Law Society relies first on the decision in Jideofo v The Law Society [2007] EW Misc 3, which was a decision of my own which stated that the test for character and suitability was a necessarily high one; was one which was not concerned with punishment but was rather a regulatory one concerned with the risk posed by an individual to the public or to the profession if admitted as a solicitor; and that it was for the applicant to discharge the burden of satisfying the character and suitability test. That decision also established that the test laid down by Sir Thomas Bingham MR in Bolton v The Law Society[1994] 1 WLR 512applied to individuals who seek admission as either a student member of the Law Society or a solicitor. It further seeks to rely on its own guidance as to assessment of character and suitability to which I will return in a moment.[28]The Law Society accepts that Ms Ali did not assist Ms Naeem, but asserts correctly that she did give a copy of her draft assignment to S. In the light of this it submits that Ms Ali could not properly have provided the requisite declaration.[29]Mr Miller, on behalf of the Society, relies upon that and upon the Panel’s finding that Ms Ali had not been completely frank with it as to her involvement in the matter or that she appreciated the seriousness of cheating.[30]As to Ms Naeem, Mr Miller makes similar submissions. He makes the same submissions in relation to the relevant test and he submits that in the light of the email that Ms Naeem sent to Ms Ali seeking assistance when she knew assistance was not allowed and in engaging Ms Ali in conversation about the assignment the following day, which led to her looking at the final page of Ms Ali’s draft assignment she could not have properly made the requisite declaration. The principles.[31]The principles are indeed set out in Jideofo as follows:
“16 In his written submissions on behalf of the Law Society in 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 with 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 Ms Evans on her own behalf nor Mr Colbey on behalf of Ms 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 upon 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 profession 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 emphasized by the decision of the High Court The Law Society v Claire Wilson [2006] EWHC 1022 (Admin) ('Wilson'). This was an appeal to the Administrative Court from a decision of the SDT which, while it found Ms Wilson guilty of conduct unbefitting a solicitor in that she had been convicted of six offences of false accounting by East Dorset Magistrates' Court and sentenced to 80 hours community service, decided to suspend her from practise for 12 months. The Law Society appealed the decision and submitted that rather than a mere suspension her conduct warranted an order striking Ms Wilson from the roll. The Administrative Court allowed the appeal and ordered Ms Wilson to be struck off the roll. 19. In his judgment Jack J, with whom Keene LJ agreed, noted at [4] that it was accepted by the Law Society that Ms Wilson in committing her offences had not done so for her own financial gain. She had been placed under pressure from her practice principal who had refused to ease her workload and who insisted that she personally attend all immigration hearings and conferences. She made false accounting returns, in respect of travel expenses for attendance at conferences and hearings she had not attended, in order that he would not find out she had she had not attended them. Jack J noted at [7] that the starting point for assessing Ms Wilson's conduct was the decision in Bolton test. 20. Jack J summarised a number of decisions where dishonesty had been dealt with by the SDT. He said at [9], in my view correctly, that ‘they emphasise the need to protect the reputation of the profession by expelling dishonest persons from it and emphasising that mitigation personal to the solicitor has little relevance . . .' See his summary at [11] to [18]. 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 for dishonesty to be found to have the requisite character. Personal mitigation, while a factor 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.”
[32]Mr Miller has further drawn attention to the fact that the Law Society has published guidelines on the assessment of character and suitability as they relate to academic misconduct as follows:
“Where the matter being considered concerns academic misconduct the Law Society’s Regulation Board will take into account the range of academic offences will occur. For the purposes of assessment of character and suitability to become a solicitor there will be particular concern where academic offences have been: Deliberate and dishonest acts committed in order to achieve personal gain or advantage. The following factors would therefore be of particular interest: • The extent to which the individual was aware of the rules and the procedures governing the referencing of material, or the use of group work or collaborative materials. • The extent to which the individual could reasonably have been expected to realise the offence did not constitute legitimate academic practice. • The extent to which the individual acted with intent to deceive. • The degree of benefit or advantage gained as a result of the offence. As in the approach to consideration of criminal convictions, the assessment will not seek to re-open the investigation undertaken by the training organisation, nor will it cast doubt on the veracity taken, providing appropriate investigation and disciplinary proceedings were followed, but statements intended to explain or mitigate the conduct in the issue will be considered.”

The following factors would therefore be of particular interest:

[33]Both Jideofo and the Law Society guidelines draw attention to the significance of dishonesty. Thus where there is dishonesty, subject to the facts of the particular case, it would be difficult if not impossible to obtain enrolment and a solicitor guilty of dishonesty is likely to be struck off the Roll of Solicitors.[34]However it appears to me that, where the Law Society positively asserts dishonesty, it should prove it to the appropriate civil standard. Moreover Law Society adjudicators and the panels should consider any such allegation and decide whether the relevant person was dishonest as alleged. The position should be made clear on the face of the relevant decision. This is important because of the significance of dishonesty. Here, as stated earlier, no dishonesty was found. This is to my mind a significant factor in each of the appellants’ favour. However it does not follow that the Law Society’s decision to revoke was wrong. All depends upon the circumstances.[35]I accept Mr Miller’s submission that the circumstances may show that the person concerned does not have the appropriate character and suitability to be a solicitor even in the absence of dishonesty. Here Mr Miller contends that the Law Society was entitled to find that these appellants did not have the appropriate character and suitability, given their deliberate making of false declarations as I have described. I consider each of the cases separately.[36]Ms Ali was in plain breach of duty in relation to the declaration. She subscribed to a declaration that she had not consulted with any person in any way about the assessment. That was not true. She had; she had consulted S. She therefore correctly conceded that she was in breach of the rules. Moreover she could not say, as the declaration asserts, “that this is my own unaided work”. It was not her own unaided work because it contained the work, albeit only a little of the work, of S. However she says that she thought that proof reading was all right. She explained this in a number of different places in her various submissions. For example in her submission dated 29 August 2006 she said:
“I only let S proof read my work because she had a different question from me. In the small group sessions we were told that we were allowed to get the work proof read by a third person. I automatically assumed that I could. Everybody else did.”
Then, again, in her request for a review of the adjudicator’s decision she included this:
“As regards the Legal Writing assessment, Beth, the criminal law lecturer said to the whole class that we should get a third person to proof read our assessment. She explained to us that this was to ensure that it was clearly written. I did this openly, as other people did, and asked [S] to read my assessment for this purpose.”
There is no finding that she did not genuinely believe that.[37]No investigation of that part of her evidence was carried out either by BPP or by the Law Society. There is no basis upon which I could find that she did not genuinely believe what she said in those two extracts. It follows therefore that she thought that she could have her work proof read and she submits that it was reasonable for her to think that even though it was, as we can now see, a breach of the terms of the declaration. I then turn to what she did.[38]On a page of her draft script, which came to light because it was attached to Ms Naeem’s script when it was handed in, there were four corrections or proposed corrections. The first was that against the reference to “HOL”, which means House of Lords, there appear in pencil the words “write it out in full.” In the event Ms Ali did not take that advice because we have the script that was in fact presented in which the letters “HOL” still appear. The second reference is in a phrase which reads “one or more representation by D”. Against the capital D there has been written “in full”. In this case Ms Ali did take the advice because she changed D to Ensign, Ensign being the name of the defendant. The third example is in the second line under “advice” where the first sentence ends “liable”, then a space then a full stop. The adviser wrote, or Ms Ali who received the advice wrote, “extra space”. In that case the advice was taken because in the presented scripts the space was removed. Finally against the penultimate paragraph, which is four-and-a-half lines long there appears on the left hand side two vertical lines with the words “split up”. Presumably the advice was to split up the paragraph. However Ms Ali decided not to split up the paragraph and it was not split up.[39]When Ms Ali was cross-examined in the course of her interview before the panel it was put to her that it was perfectly obvious that advice to split up a paragraph like that was not mere proof reading but something quite different. It is certainly arguable that it is not proof reading, especially in the context, which was that this was a legal writing assessment and so the legal writing was part of the exercise, and it was no doubt that which led one of the external examiners to make the comment which I quoted earlier. However, that said, there appears to me to be a very narrow line between what may fairly be regarded as proof reading and what may not. Thus the space would be a good example of proof reading. It would be perhaps questionable whether having “Ensign” instead of D would be properly regarded as proof reading or indeed the suggestion that HOL should be set out in full might be regarded as proof reading. It appears to me that the answer to these questions is by no means clear, although I well understand both the external examiner’s view and the panel’s view that what Ms Ali did was plainly inappropriate.[40]I would just like to say in parenthesis that the facts of this case underline the importance of making the regulations which show what is and is not permissible absolutely clear. It should be absolutely clear to the students what is or is not permitted. If proof reading is to be permitted, the written rules should say so and, if it is not, the rules should make that absolutely clear. If it is to be permitted, what is meant by proof reading should be made absolutely clear so that this problem could never arise in the future.[41]However to return to Ms Ali, I have reached the conclusion that, given her explanation of why she thought that it was permissible to have her document proof read by someone who was not herself answering the same question, given the material which supports that, namely the forms filled by some of the other students and her evidence about what she was told by BPP, it appears to me that the Panel was wrong to conclude, on the materials available here, that she is not a person who satisfies the character and suitability test. I note that she has been working in a number of different ways since 2006 when this all occurred. In all the circumstances, I allow the appeal and quash the order in her case.[42]As to Ms Naeem the position is somewhat different. It appears to me that there was a plain breach of the declaration (as I described earlier) and I well understand the view of the Law Society’s Adjudicator and Panel that it is difficult to think that she did not appreciate the position. However they did not make any finding of dishonesty against her. She acted, as she accepts, stupidly; she was plainly negligent in allowing herself to sign up to the declaration without giving it any proper thought. She has no similar mitigation to that of Ms Ali; she could not reasonably have thought that it was permissible or OK to sign the declaration sheet, which a student should appreciate is a document of the utmost importance. In these circumstances it would not be appropriate for me to quash the order made by the Law Society.[43]However the question is whether I should simply dismiss her appeal and leave her to apply in the future to the Law Society under Regulation 32 (3) (ii). To be fair to Ms Naeem she has always accepted -- indeed she accepted in her petition -- that the decision of the Panel was justified and her submission is, however, that two years have now gone by and that it can now be seen that she does satisfy the character and suitability test, notwithstanding her failings which I have described. She relies in particular on some of the matters to which I have already referred, including the work that she has been doing for the Stockport Metropolitan Borough Council. For the last two years or so she has been working for them as part of the Children and Young People’s Directorate. I have a letter dated 13 March 2007 written by Ms Davis, who is the Head of the Service: School Leadership and Pupils within the Children and Young People’s Directorate, which says that Ms Naeem plays an important role in facilitating decision making for challenging young people finding school difficult. She is thoroughly well organised and prepared and demonstrates an ability to manage a large amount of complex information very efficiently. She is consistently able to apply systems and procedures and manages her time well when working to deadlines. Ms Davis further says that she is a responsible officer who is sensitive to all aspects of data protection when dealing with information about young people and their families. She makes fair unbiased decisions on facts, taking account of equality and other legislation. This letter is supportive in every way and so indeed is that of another Children’s Service Inclusion Officer, who describes her as hardworking, trustworthy and reliable. There are also other references to like effect.[44]Having had the benefit of listening to Ms Naeem’s submissions this morning, while I deprecate the errors that she made, I am persuaded that as at today she does satisfy the test required and that the appropriate course, if I have the power, is not to revoke the decision that was made but to remove the prohibition. Under Rule 32 (3) (ii), which sets out my powers, I have power toaffirm the decision of the Society or “make such other order as the Master of the Rolls thinks fit”. On the face of it those words are wide enough to give me power to remove the prohibition. The next sub-paragraph shows that in some circumstances it would be appropriate to remove the prohibition and it appears to me that the words of Regulation 32 (3) (ii) (b) are wide enough to give me that power. I should add that Mr Miller does not submit to the contrary. In those circumstances the right course in this case in my judgment is not to revoke the decision but to allow the appeal to the extent of removing the prohibition. That is what I propose to do.

Order

Ms Ali: Appeal allowed; Law Society’s order quashed 45. Ms Naeem: Appeal allowed in part. Decision not revoked, but prohibition against pursuing training contract removed.

Cited in 2 later judgments