Afsar (A Solicitor), Re [2009] EWCA Civ 842

[2009] EWCA Civ 842ON APPEAL FROM THE LAW SOCIETYVenue Royal Courts of JusticeStrandLondon, WC2Date Tuesday, 7 th July 2009B E F O R E:LORD CLARKE OF STONE-CUM-EBONY(THE MASTER OF THE ROLLS)
IN THE MATTER OF THE SOLICITORS ACT 1974RE A SOLICITORNo. 4 of 2009Z.AFSAR
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR PRIESTLEY (instructed by Miller Gardner) appeared on behalf of the Appellant.MR MURRAY (instructed by the SRA) appeared on behalf of the Respondent.
Judgment

Lord Clarke:

[1]On 7 April 2008 Mr Nigel Butcher, a Solicitors Regulation Authority (“SRA”) adjudicator, cancelled Mr Afsar’s student membership of the Law Society. He did so because he concluded that Mr Afsar did not have the necessary character and suitability to be a solicitor. Mr Afsar challenged that decision. On 21 November 2008 an appeal from Mr Butcher’s decision was dismissed by an SRA appeals panel. Mr Afsar now appeals from the decision to cancel his student membership pursuant to Regulation 32(3)(ii) of the Training Regulations 1990.[2]The facts can be shortly stated. On 9 May 2006 Mr Afsar was involved in a road traffic accident on Oxford Road in Manchester. He drove into the back of a car whilst driving on the wrong side of the road. Both cars had pulled out from a queue of stationary traffic and were proceeding along the wrong side of the road. Mr Afsar collided with the car in front because that car pulled out in front of his when he had already built up speed. Both cars were written off. As a consequence of the collision, the car in front of Mr Afsar’s vehicle hit a pedestrian. The pedestrian was knocked unconscious and received 11 stitches to his head, which left a prominent scar as a consequence of his being hit. He also suffered a twisted ligament in one leg and numerous cuts and bruises.[3]I understand that the injured pedestrian has not made a claim against Mr Afsar, although it may well be that he made a claim against the driver of the car who actually hit him.[4]Mr Afsar was not arrested at the time of the incident. He was, however, subsequently charged with dangerous driving. A summons for that offence was issued on 9 November 2006. He was remanded on bail at Manchester City Magistrates’ Court on 4 December 2006.[5]On 16 April 2007, while still on remand on bail, he applied for enrolment as a student member of the Law Society. He indicated on the enrolment form that he had never been convicted of an offence in a UK court. He also indicated that there were no other factors which might call into question his character and suitability to be a solicitor. On 30 April 2007 he was granted student membership.[6]On 20 June 2007 Mr Afsar pleaded guilty to the offence of dangerous driving. He was sentenced to six months’ imprisonment, suspended for 12 months. He was further ordered to carry out 240 hours’ unpaid work, disqualified from driving for 12 months and required to pass a further driving test; and ordered to pay £200 in costs. On 25 June 2007 Mr Afsar informed the SRA of his conviction and said that it arose out of an incident that occurred on 9 May 2006. No details of the incident were supplied at that time. The matter was then investigated by the SRA’s professional competence team.[7]On 10 August 2007 Mr Afsar completed the community order. In September 2007 he commenced the Legal Practice course at Manchester Metropolitan University. The following month, on 3 October 2007, the SRA wrote to Mr Afsar asking him to supply, amongst other things, further details about the events giving rise to his conviction, full details of his conviction via an extract from the police national computer and sentencing remarks if available. In doing so, it pointed out that this was required in order to assess both his continued student membership and his suitability for admission as a solicitor.[8]On 17 November 2007 he supplied the information requested. In that response he described the car accident in what could properly be said to be bland terms. He said little more than that he had regrettably pulled out on to the wrong side of the road and collided into the back of the car that pulled out in front of him from a lane of stationary traffic. No mention was made as to the damage to the cars or, more importantly, to the injuries caused to the pedestrian.[9]The SRA was not satisfied with Mr Afsar’s description of the accident, not least because it was not evident why an accident described in those terms could have given rise to a custodial sentence. On 30 January 2008 it wrote by e-mail to Mr Afsar asking him to provide further details. Mr Afsar responded the same day. He re-stated how he had hit the back of a car which had pulled out in front of him. He added, however, that as he put it:
“As a result of the collision, the car which I hit lost control and hit a pedestrian who was walking on the pavement. The pedestrian suffered injuries. The reason why I received such a severe punishment was because Oxford Road is a very busy road and also the fact that a pedestrian was injured.”
[10]Mr Afsar subsequently attended an interview with Nigel Butcher on 27 March 2008, the purpose of which was to determine his character and suitability to continue as a student member of the Law Society. During that interview Mr Afsar explained for the first that that both cars involved in the accident were written off and that he believed that an individual had suffered internal injuries. No further details were given as to the extent of the pedestrian’s injuries.[11]Following this interview, Mr Butcher determined to cancel Mr Afsar’s student membership as he was not satisfied that he had the requisite character and suitability to become a solicitor. He did so for these reasons:
“Mr Afsar was issued with a summons for dangerous driving on 9 November 2006. He first appeared at the Manchester City Magistrates Court on 4 December 2006. When he applied for student enrolment in April 2007, he was on bail for this offence but did not disclose it to the SRA. He did not provide any satisfactory explanation at interview as to why he did not consider that this was a matter which he should have disclosed to the SRA when applying for student enrolment. When he first supplied details of the offence Mr Afsar did not consider it relevant to mention that in addition to colliding with the rear of another car whilst driving on the opposite carriageway of a busy city road, a pedestrian was hit and seriously injured. He first mentioned this in a letter to the SRA in January 2008 but only at interview did he provide a full statement showing the nature and extent of the injuries caused by his driving in this incident.”
[12]Mr Butcher went on to note that, while Mr Afsar had completed the unpaid work element of his sentence and paid the costs order imposed, he was still at that time subject to the suspended sentence of imprisonment. He went on to say this:
“Despite knowing that the question of his character and suitability were being called into question Mr Afsar proceeded to enroll on a full-time LPC course in September 2007 which cannot be undertaken without a valid Certificate of Enrolment. Mr Afsar showed remorse for his actions when questioned in interview and indicated that he appreciated the seriousness of the matter. However I consider that in failing to disclose the matter at the outset and failing to provide full details of the seriousness of the matter until prompted by the SRA and in proceeding with his course despite knowing that this matter was outstanding Mr Afsar has put his own interests ahead of his responsibility to be open and honest. I do not consider that he has demonstrated that he understands the serious implications of his conduct in relation to the high standards of honesty and integrity which are required of all applicants to be admitted as a solicitor. He remains subject to a suspended sentence of imprisonment and I consider that at the present time, and in the light of the evidence currently available, there would be a substantial risk to the reputation of the profession if he were allowed to continue as a student member of the Law Society. I am also not satisfied that he has established confidence that he has the necessary standards of honesty and integrity or willingness to comply with the regulatory requirements that are required.”
[13]Mr Afsar appealed from that decision. After being interviewed by an SRA appeals panel, the adjudicator’s decision was upheld. Mr Afsar now challenges the SRA’s decision in the present appeal.

Mr Afsar’s submissions

[14]The basis upon which Mr Afsar brings the present appeal is succinctly set out in his petition. First, contrary to the adjudicator’s finding that he failed properly to appreciate the necessity of informing the SRA of the matters surrounding the trial, he had in fact properly informed them of his change of plea from not guilty to guilty on 25 June 2007. He had decided to change his plea on advice on 20 June 2007. This, it is submitted, demonstrates that he is an individual who is worthy of trust and confidence.[15]Secondly, it is submitted that the SRA appeals panel placed excessive weight on his failure to disclose his then pending road traffic case in his original application. The non-disclosure is acknowledged to have been an error on Mr Afsar’s part. It is submitted that it was not, however, a wilful dishonest act, but rather an error of judgment. It is submitted that the subjective approach to this taken by the SRA was an unfair way to approach the issue. Objectively, his post-conviction conduct is said to be more indicative of his character and suitability.[16]Thirdly, it is submitted that failure to disclose the matters in this case presupposes that convictions for road traffic offences call into question character and suitability. It is a reasonable inference, it is submitted, that, given the wording of question 1 on the EN1 form, such matters are viewed differently by the SRA. It should be noted that this submission is somewhat at odds with Mr Afsar’s view earlier in this matter that, on 16 May 2008, he made clear that his non-disclosure arose from a desire to await the outcome of the proceedings and not from any inference that it was something that need not have been disclosed.[17]Fourthly, it is submitted that the SRA failed to take proper account of the fact that, at the time he completed the EN1 form, no criminal finding had been made. Proper consideration can also be given to the fact that, while a pedestrian was injured as a consequence of the accident, Mr Afsar remained at the scene and was not arrested but merely dealt with by way of summons.[18]Finally, it is submitted that the appeals panel failed to take proper account of the fact that he completed his community service in six weeks; that he has not driven since the incident save to take his extended driving test; that the suspended sentence period has expired and that he was only 20 years old at the time of the accident. Furthermore, it is said that the appeal panel failed to take proper account of his references.

The SRA’s Submissions

[19]The SRA’s starting point is that the test for character and suitability is that established in Jideofo v Law Society [2007] EW Misc 3 and elaborated in Ali and Naeem [2008] EWCA Civ 769. These cases established that the test which the applicant is required to discharge is, necessarily, a high one, but it is concerned not with punishment but whether there is a risk to the public or the reputation of the profession, and that an individual may not have the requisite character and suitability even in the absence of dishonesty. It further submits that the SRA adjudicator and review panel were correct in their findings that Mr Afsar does not have the requisite character and suitability to be admitted.[20]It submits this for essentially two reasons. First, Mr Afsar has a very recent criminal conviction which, although not for dishonesty, gave rise to a suspended prison sentence. This, it is said, calls into question his integrity, probity and trustworthiness. Secondly, the conviction must be looked at in the context of his failure to disclose a pending criminal trial and his remand on bail at the time he first applied for student enrolment and his subsequent attempts to minimise the seriousness of that offence. It submits that, in the light of this and the relatively recent expiry of Mr Afsar’s suspended sentence there is a clear risk to the reputation of the profession if he were to be admitted.[21]In reply to Mr Afsar’s points, the Law Society makes a number of submissions. First, it is said that the review panel did not rely on an apparent belief that Mr Afsar changed his plea at an earlier time than he informed them of it. It made its decision on the ground that he failed to disclose that there were pending criminal proceedings at the time he applied for membership. Moreover, he can be given no credit for informing the SRA of his conviction when he did as he was obliged to do so in any event.[22]Secondly, it submits that Mr Afsar was required in the EN1 form to provide details of “any factors which might call into question his character and suitability”. Being on bail pending a criminal trial is, in its submission, such a factor that ought properly to have been disclosed. It submits that either Mr Afsar deliberately failed to answer this question properly and misled the SRA or he failed properly to understand it, which, it is said, raises questions about his judgment and reliability.[23]It further submits, that having had two opportunities to explain his non-disclosure to the SRA in March and November, he failed to do so to its satisfaction. The SRA, it is said, placed proper weight on this issue.[24]The SRA submits that convictions for dangerous driving clearly call into question character and suitability. The only proper inference to be drawn from the language of question 1 of the EN1 form as to the disclosure of motoring offences is that those which do not result in disqualification do not need to be disclosed. In any event, Mr Afsar did not, before the adjudicator or the review panel, rely on a claim that he in fact drew the inference from the question’s wording that it did not require him to disclose details of the motoring offence for which he was discharged, which would necessarily have resulted, on conviction, with a disqualification.[25]It further submits that the review panel was aware that there had been no finding of guilt when he made his student application. That he was on bail at the time was a relevant factor that ought to have been disclosed. Equally, the fact that he remained at the scene does not negate the conviction or his failure to provide full details of the matters giving rise to the offence to the SRA later.[26]It goes on to submit that Mr Afsar’s age is not a relevant factor, since the question the SRA must ask is whether an individual at his stage in his career can be admitted. It notes that the SRA took account of the fact that he had completed his community service and that his suspended sentence had expired. These matters do not, it is submitted, outweigh the evidence against him. The SRA finally notes that Mr Afsar’s references were properly taken into account and do not outweigh the case against him.

Discussion

[27]On 16 April 2007 Mr Afsar applied for student enrolment of the Law Society. He did so by completing an EN1 form. That form requires applicants to answer certain questions and make a declaration that the information contained in the form is to the best of the applicant’s knowledge true and correct. One of the questions that must be answered is whether the applicant has:
“… ever been convicted of an offence in any court of the United Kingdom or elsewhere (other than a motoring offence which did not result in disqualification)?”
[28]This question clearly requires an applicant to supply details of any offence, including motoring offences that result in disqualification. Any suggestion that it is a vague or ambiguous question that could easily lead an applicant to conclude that motoring offences leading to disqualification need not be disclosed is, in my judgment, unsustainable. The question, as drafted, makes it abundantly clear that the SRA rightly views motoring offences leading to disqualification as calling into question character and suitability. At the time Mr Afsar completed the form he had no convictions. He therefore answered this question honestly when he indicated that he had no such convictions. The answer to this question does not, therefore, call into question his character and suitability.[29]It is readily apparent, in any event, that neither the SRA adjudicator nor the review panel based its decision on a finding that Mr Afsar’s answer to question 1 on the EN1 form was answered incorrectly. Both the adjudicator and the review panel placed weight on the fact that Mr Afsar did not disclose the fact that he was subject to prosecution for dangerous driving at the time he completed the form. They did so on the basis that this matter ought properly to have been raised by Mr Afsar in response to question 7 on the EN1 form, which requires applicants to provide details of any other factors which might call into question their character and suitability.[30]This question is in very broad terms. It is without doubt wide enough, on an objective assessment, to encompass the need to declare that criminal prosecutions are pending at the time of application and to provide a full explanation of the matter and its surrounding circumstances. Equally and, to my mind, obviously, it requires the provision of information relating to pending prosecutions for motoring offences that may result in disqualification. Any suggestion that the form is ambiguous on this point is, in my opinion, manifestly wrong and must be rejected. It should also be said that if any individual applicant is unsure as to how to answer any particular question, they should err on the side of caution. Full and frank disclosure to the SRA requires it. The approach to take is not the one Mr Afsar adopted, which was essentially one of “wait and see”. As he put it in his submissions to the SRA dated 16 May 2008, the reason he failed to disclose the information on the application before them was that he wanted to wait until the case was concluded and then inform the SRA.[31]The simple fact is that Mr Afsar failed to disclose his pending prosecution when he was under a duty to do so. He therefore inaccurately completed the form and made a false declaration as to the form’s accuracy. Whether or not he did this dishonestly, it raises serious questions about his character and suitability to be admitted. At the very least, it demonstrates a recklessness on his part in completing the form and providing the SRA with sufficient information to form a view of his character and suitability. Such recklessness on its own calls into question his character and suitability, just as it would for a solicitor facing a strike-off application in circumstances where dishonesty was not in issue.[32]Further, Mr Afsar did not, as he ought to have done, provide the SRA with full details of the matters relating to the prosecution and the circumstances that gave rise to it. That ought to have been done when he completed the form, as is made clear by the notes to question 7. It is the duty of any applicants when completing such forms and when responding to questions from the SRA, as Mr Afsar was required to do during its investigation of the matter from October 2007, to give full and frank disclosure. Anything less is not sufficient.[33]Full details must be given; not sketchy and incomplete details such as those given by Mr Afsar. His failure to disclose his pending criminal prosecution and his subsequent failure fully and frankly to disclose the nature of the matters giving rise to the prosecution, in my opinion, call into question his integrity and probity. They do so sufficiently to justify the SRA’s decision to cancel his student membership. As Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 at 518 made clear, lapses which do not amount to dishonesty are serious in a profession whose reputation depends on the integrity and probity and trustworthiness of its members or, as in this case, future members.[34]The SRA adjudicator held, however, that Mr Afsar had “put his own interests ahead of his responsibility to be open and honest”. He went on to hold that he was not satisfied that Mr Afsar had established confidence that he had:
“the necessary standards of honesty and integrity or willingness to comply with regulatory requirements …”
[35]The review panel upheld the adjudicator’s decisions on the ground that Mr Afsar had failed to demonstrate the expected standards of honesty and trustworthiness. It is not clear whether, in making these findings, they were implicitly holding that Mr Afsar had deliberately attempted to mislead the SRA or whether, as was canvassed by the SRA’s case worker, Miss Fearn, in her submission to the adjudicator dated 7 February, it was an attempt to minimise the seriousness of the matter. It appears that her recommendation, that enrolment should be cancelled on the ground that there was an attempt to minimise the matter by Mr Afsar, was accepted by the adjudicator.[36]That there was no explicit finding of a deliberate attempt to deceive or dishonesty is important. It is important because, if there is a clear finding of dishonesty, it is well-established that cancellation of student membership will almost always be justified: see Bolton at page 518 and Jideofo at paragraphs 10-21. A finding of dishonesty is a serious matter. If Mr Afsar were a solicitor, an allegation of dishonesty, in the context of striking off, would be dealt with by the Solicitors Disciplinary Tribunal (SDT). The case would be put to him directly and answered, if he gave evidence, under oath. The SDT would then, on the present authorities, have to apply the test approved by the Court of Appeal in Bultitude v Law Society [2004] EWCA Civ 1853 at paragraph 32.[37]Two questions would have to be asked by the SDT. First, whether the individual concerned acted dishonestly by the ordinary standards of reasonable and honest people and if so, secondly, was he aware that he was acting dishonestly by those standards? That is the approach that would be applied to solicitors.[38]Jideofo, at paragraph 14, made clear that the same approach applies to those seeking admission as it does to those already admitted. In assessing dishonesty in those seeking student enrolment or in those enrolled, where cancellation of that enrolment is concerned, the SRA is therefore required to take the same approach as would be taken in respect of dishonesty. It would apply the test of dishonesty set out in Bultitude. There is no suggestion, to my mind, in either the adjudicator’s decision or the review panel’s decision that it did so. As was held in Ali and Naeem [2008] EWCA Civ 769 at paragraph 34, where the Law Society or, as now, the SRA positively asserts dishonesty, it should prove it to the appropriate civil standard. The refusal of student enrolment or cancellation of enrolment on the grounds of dishonesty is as serious a matter as to strike off a solicitor for dishonesty. I would add that it is incumbent on the SRA in properly discharging its regulatory function to ensure that it adopts as rigorous and fair approach as the court does to the matter. It is apparent from the transcript of the interview which Mr Afsar gave as part of the adjudication process that an allegation of dishonesty was not put to him by the adjudicator. It ought to have been if a clear finding of dishonesty was to be made. I note that, according to the record:
“The adjudicator was satisfied with the frankness of the accounts Mr Afsar gave. He was not intending to attach any weight to the injuries sustained.”
That must, I think, mean the adjudicator.[39]The review panel, too, interviewed Mr Afsar and they too did not put an allegation of dishonesty as such to Mr Afsar. In these circumstances it is clear to me that the decision to revoke Mr Afsar’s student membership was not based on dishonesty as such. It was made on the ground, as the adjudicator and the review panel made clear, that his failure to disclose raised serious questions as to his integrity, honesty and trustworthiness sufficient in a non-dishonesty case to justify revocation or cancellation. It is clear to me that the SRA was correct, in the circumstances of this case, to find as it did. That is the case notwithstanding the fact that Mr Afsar had completed his community service and his suspended sentence and that he has good references and, moreover, was only 20 years old at the time of the driving offence. His decision, unprompted, to inform the SRA of his conviction, whilst it does count in his favour to some extent, is more than offset by his continued attempts to minimise the seriousness of the offence by failure until the last moment to inform the SRA of the full nature and circumstances of the offence. The weight properly to be placed on the factors relied upon by Mr Priestley, on behalf of Mr Afsar, cannot, to my mind, properly call into question the actual decision made by the SRA. The mere fact that Mr Afsar has successfully completed his sentence does not by itself even begin to show that he has, as Bolton has it at page 517, “learnt his lesson”.[40]It should also be said that reference to his age at the time of the driving offences in one sense is irrelevant, as the issue here is the failure to disclose and the attempts to minimise the seriousness of the offence and its circumstances and not so much the offence per se. In any event this is a case in which student membership is issue.[41]Mr Murray recognises that under regulation 32(3)(ii), I have power, either to “(a) affirm the decision of the Society; or (b) make such other order as [I] think fit” He also draws attention to paragraph 3(iii) of Regulation 32, which provides that Mr Afsar could not apply for enrolment in a period less than 12 months from the date on which the enrolment was cancelled. That period expired, therefore, in April 2009. Mr Murray submits that neither the SRA nor I can be sufficiently confident today that Mr Afsar is of sufficient honesty and integrity to allow him to be admitted as a student member.[42]That is the essential question for decision today. It appears to me that the choice I have is between simply dismissing this appeal on the one hand or, on the other hand, while holding that the decision of the adjudicator and review panel’s decisions were entirely correct when made, deciding that the public interest does not now require Mr Afsar to be prevented from being enrolled as a solicitor.[43]The offence took place in 2006 now some time ago. He has completed the penalties which were imposed upon him. The 12-month period since the date of the adjudication has expired, as I have indicated. Mr Afsar has now been working as a paralegal at Miller Gardner, who are solicitors in Manchester, for nearly a year. He has good references which attest to his character, reliability and honesty. Indeed I now have a letter dated 2 July in which a Mr Rodney Gardner of Miller Gardner speaks well of him as a paralegal and says that in the 12 months that he has been employing him he can:
“vouch for his honesty, trust and professionalism, which is complemented by his quiet and respectful disposition.”
One of the other references says that he is “an extremely valuable asset” to the firm.[44]It appears to me that, given the fact that this is not deliberate dishonesty as such, and notwithstanding the serious criticisms which were properly made of Mr Afsar in the way he failed to disclose relevant material to the SRA, it is fair to say that permanent exclusion from the profession would be disproportionate. It seems clear to me from what the adjudicator wrote that he was not contemplating permanent exclusion but was looking at the matter in the light of facts as they appeared to him then. In the light of what has happened since and the good references to which I have referred, I do not think that the enrolment of Mr Afsar now poses a risk to the public or the reputation of the profession. I hope I am right about that, but I reach the conclusion that the just course is to direct that the SRA now reinstate his student membership.[45]So the appeal succeeds, but only to that limited extent.

Order

Appeal allowed

Cited in 2 later judgments