Masrur (A Solicitor), Re [2009] EWCA Civ 944

[2009] EWCA Civ 944ON APPEAL FROM THE LAW SOCIETYVenue Royal Courts of JusticeStrandLondon, WC2Date Monday, 24 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.13 of 2009R.MASRUR
(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)
THE APPELLANT APPEARED IN PERSONMR R POWER (instructed by the SRA) appeared on behalf of the Respondent
Proceedings and Judgment
[1]The appellant, Mr Raghib Masrur was born on 2 November 1985. He is therefore now 23 years of age. On 12 March 2008 Mr Masrur applied for student membership of the Law Society. In his application he disclosed the fact that on 21 March 2002 when he was 16 he had been convicted of three counts of handling stolen goods and one count of obtaining a money transfer by deception. On 15 August 2008 Ms Fearn, a Solicitors’ Regulation Authority (“SRA”) senior assessment officer refused Mr Masrur’s application. She did so on the grounds that in the light of his convictions, which she noted involved “precision planning and execution” and of which she concluded he failed to appreciate the seriousness, he did not have the requisite character and suitability to be admitted as a student member of The Law Society.[2]Mr Masrur appealed from that decision to an SRA Review Panel. The Panel, in a unanimous decision, rejected the appeal. Although the document containing the adjudication decision of the Review Panel and its reasons is dated or purports to be dated 11 June 2009, there is a letter before me dated 4 March 2009 in which the SRA informed Mr Masrur of the decision of the Panel. It follows that the Panel must have reached its decision before 4 March and cannot have reached it later than 4 March. The date of 11 June must therefore be an error. This is significant or potentially significant for this reason. Under Regulation 6(5) of the Training Regulations 1990 (“the 1990 Regulations”), an applicant may make not more than three further applications for enrolment at intervals of not less than 12 months of the Society’s refusal under paragraph 3. It is common ground, and accepted by the SRA, that that 12 months runs from 4 March 2009 at the latest.[3]Mr Masrur appeals from the decision of the Review Panel to me under Regulation 6(4) of the 1990 Regulations. In his petition he relies on Regulation 32(3)(ii) of the 1990 Regulations. However, that provision relates to appeals from decisions to cancel student membership after it has been granted. This is not such a case. This is an appeal from a refusal to grant student membership. That decision was made under Regulation 6. Mr Masrur’s right of appeal to the Master of the Rolls is contained in Regulation 6(4). This is therefore an appeal under Regulation 6(4). This makes no difference to the principles which apply.[4]I should, before considering the substance of the matter, refer to one other aspect of Mr Masrur’s submissions. It is there suggested that the SRA may have power to grant student membership subject to conditions and that I indeed may have power to do the same on this appeal. However, that is not correct. The SRA has no power to grant student membership subject to conditions and equally I have no power to do so either. The imposition of conditions is something which the SRA can in some circumstances do in connection with a solicitor’s practising certificate. It has no application to this class of case.[5]I turn therefore to the substantive issue. The law regarding character and suitability assessments of those who seek to be student members of The Law Society is now well established. The decision in Jideofo v The Law Society & Ors [2007] EW Misc 3 (EWLS) at [14] held that the test set out by Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 at 518-519 is applicable pre-admission to questions of character and suitability just as it is applicable post-admission. It was further held in Jideofo at [16] that: one, the test of character and suitability is necessarily high; two, that it is not concerned with punishment, reward or redemption, but rather with whether there is a risk to the public or whether there may be damage to the reputation of the profession; and three, that as no one has a right to be admitted as a solicitor it is for the applicant to discharge the burden of satisfying the test of character and suitability.[6]The position was summarised at [21] of Jideofo as follows:
“21. In the light of Bolton and the summary of its application in Wilson [that is to say The Law Society v Claire Wilson [2006] EWHC 1022], 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, on the nature of any dishonesty and rather different considerations seem to me to apply in the absence of dishonesty: see eg Shuttari v 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 readmitted to the profession following a strike-off, even after findings of dishonesty.”
It is clear, as was affirmed in Ali & Naeem [2008] EWCA Civ 769 at [33], that the upshot of this is that, subject to the facts of the particular case, where there is dishonesty it would be “difficult if not impossible to obtain enrolment…”. I turn therefore to the facts of the present case and the parties’ submissions.[7]Mr Masrur provided a statement of events to the SRA with his student membership application form. In that document he described the events that led up to his conviction in the following way. Sometime in February 2001, he was approached and stopped by two youths, who asked him, in his words, to “take part in a scheme they had devised whereby a fraudulently made out cheque would be paid to my bank account, the proceeds of which would be split by both parties in agreed proportions”. The cheque was made out for £800, of which Mr Masrur points out he received a “limited” benefit of £250.[8]He said in his statement that he was not at that time concerned about the dishonesty involved in the scheme but rather the risk of being caught. He was however persuaded, he says, to take part in the scheme. It was, as he told the SRA Review Panel when it interviewed him, a scheme “devised and marketed to [him] as a very risk-free, get-rich scheme, and that’s what sold it to me, from what they described, it posed virtually no risk to me, otherwise I wouldn’t have got involved”. In order to facilitate the scheme he gave his bank card to one of the scheme’s proposers, who then paid the cheque into Mr Masrur’s account. In order, as he puts it, to mitigate the risk that arose from the scheme, he was to notify his bank that his bank card had been stolen. He was to do this, again in his words, to “lend further credence to [his] denial of involvement in the scheme”.[9]The scheme was put into effect in this way and Mr Masrur, shortly thereafter, withdrew the proceeds of the fraudulently cashed cheque using a replacement bank card issued by his bank. He was then asked to cash a further cheque in this way, but declined. Despite declining to do so he agreed however to take possession of two similar cheques in order, as he puts it, to “ solicit others to partake in the scheme”. He says however that he did not do so, but simply kept the cheques in his possession. He did not go any further with the scheme, because he did not want to recruit other people in order to avoid gossip. In other words, it would appear that he feared that recruiting others would raise the risks associated with the scheme.[10]On 31 May 2001 the police had occasion to question and search Mr Masrur because he was in the vicinity of a reported disturbance. The two further cheques were found in his wallet. He offered an explanation as to why they were there, which it appears was not accepted by the police and he was arrested. After a short period during which he refused to cooperate with the police whilst he was in custody, he then cooperated fully with their investigation. He was subsequently prosecuted for three counts of handling stolen goods and one count of obtaining a money transfer by deception. He pleaded guilty to all four counts on 21 March 2002 before the Thames Juvenile Court. He was sentenced, in total, to pay £250 compensation, to a two month curfew order and electronic tagging and he was placed under a twelve month young offenders supervision order.[11]That is the background which was disclosed to the SRA and which caused them to question Mr Masrur’s character and suitability for admission as a student member of The Law Society. I turn now to the parties’ submissions.[12]Mr Masrur has provided detailed written submissions, which I summarise in this way. He submits that he has accepted and does now categorically accept full responsibility for his actions and accepts that those actions, for which he was convicted, were wrong. He committed those offences out of a desire for immediate financial gain despite knowing at the time, which he openly admits, that such acts were wrong. He emphasises in fact that he knew at the age of 15 that he was acting illegally at the time. It would, he submits, be incorrect to conclude that he was incapable then of drawing the distinction between right and wrong. He knew it was wrong then but submits that, in his words, his “moral composition” at the time was such as to enable him to ignore what he knew. He did so because he perceived that there was a low risk of being apprehended. It was because he believed that there was a higher risk of being caught that he did not attempt to cash the other cheques that he was subsequently given by the other participants in the fraud. He chose to act as he did, he says, knowing that it was wrong but on what he says was a “utilitarian calculation of risk”.[13]He submits that this candour should stand in his favour. He makes a number of detailed submissions to the effect that the Review Panel failed to have regard to his candour in his favour in the circumstances in which it ought to have been done. It is not necessary for me to refer to all of those here, but for example he submits that he should not properly be criticised for not informing his employer of his offending, not least because, insofar as his employer is concerned, he is entitled to the benefit of the Rehabilitation of Offenders Act 1974. That is correct. He is entitled to that benefit although he is not entitled to that benefit in his application to the SRA for admission to the Law Society, and to be fair to him he does not say that he is.[14]He submits that there was no evidence that he had a cavalier attitude or that he attempted to trivialise his conviction. He submits that the Review Panel erred in concluding that he was detached and possibly unemotional in his approach to his interview. He accepts that he was not excessively emotional but that he was not in a detached emotional state. He in fact submits that he found it difficult to restrain his emotions during his Review Panel interview. He attempted to do so because he did not, as he put it, consider that such an interview was the proper medium for the expression of remorse and emotion. On the contrary he viewed the interview as a forum to provide information. He submits that those who know him and who are aware of his convictions know that they are a cause of shame and anguish to him. In the light of his past, he says that he now has a strong determination not to be swayed again and that he always errs on the side of caution in matters of honesty. He relies on a number of references, which acknowledge that he is indeed remorseful.[15]He challenges the Review Panel’s conclusion that he showed a lack of interest in where the stolen cheques originated or the impact of their theft on others. He knew the cheques were stolen. He did not know how they were stolen. He did not know the full details of the scheme he participated in; nor has he had any real opportunity to find out since, not least because he has avoided contact with his co-offenders. Knowing any further details, he submits, would add nothing to an assessment of his character and suitability over and above the fact that he knew at the time that what he was doing was immoral and wrong. He goes on to submit that he does not know the consequences for others of his acts, but again does not see how that is relevant. He would welcome the opportunity now to apologise and express his regret to the victims of his offending in person. He also understands the difficulties that could well have been caused to the victim arising from his actions as well as problems that might have arisen for the wider community.[16]He submits that his approach to the matter is not something that can now properly provide cause for concern. He made a full confession to the police. He pleaded guilty. He accepted his sentence. He has completely disassociated himself from the other individuals involved. He complied with the terms of his sentence, and cooperated with his rehabilitation program so well that it concluded six months early. He has changed his attitude so that he is now completely honest. He was frank with the SRA in disclosing his convictions. He has complied in full with the SRA’s procedures and he has properly acknowledged the SRA’s legitimate interest in his character and suitability.[17]Finally, he submits that he has never attempted to disclaim responsibility for his offending. He notes that a concern was raised by a member of the Review Panel to the effect that he had not provided further information or documentation to corroborate his version of the events. He had responded to that concern in a way that was taken, in his view, by the Review Panel to attempt to shift the responsibly on to the SRA to seek such information. He submits that that is not a fair inference to draw and that he had simply expressed dissatisfaction regarding the procedural manner in which his application had been handled. No adverse inferences, he submits, should be drawn from this issue.[18]Mr Masrur relies on a series of matters which he submits show that he is now honest and trustworthy. They include the fact that he informed his bank when he credited funds to his account in error; that he rectified errors in respect of items delivered to him that ought not to have been; and that he has a character reference from an employer confirming that he holds a position with high financial responsibility. His actions he submits show that he can now be accepted as an honest person who can be relied upon.[19]He submits that he has much to offer the profession, not least given his understanding of practical application in his employment with AN Express Ltd of anti-money laundering procedures. He says that he cannot see how public disdain for his youthful criminality should require his exclusion from the profession. The Law Society’s submissions[20]In their written submissions the Law Society draws attention first to the principles set out in Jideofo, to which I have referred.[21]The essential thrust of the SRA’s case is that in the light of Mr Masrur’s convictions for dishonesty it would only be in exceptional circumstances that the SRA could properly be satisfied that he had the requisite character and suitability to be admitted as a student member and then as a solicitor. It submits that he failed, as he is required to do, to demonstrate that there are such circumstances and that the SRA Review Panel, having interviewed him, was properly placed to assess his character and demeanour and was thus properly placed to decide as it did. It submits therefore that in the light of his convictions, and the findings of the Panel regarding his approach and attitude to his offences, there remains a real risk to the public and the reputation of the profession in admitting him.[22]It also submits, in essence, that Mr Masrur’s approach to his offending, at any rate at the time, show that he knew that what he was doing was dishonest and he simply took the risk because he thought it was a small risk.[23]It further submits that Mr Masrur misunderstands the proper approach to character and suitability assessments. Such assessments focus on whether an individual is suitable to practise as a solicitor per se. While the Review Panel placed proper weight on the fact that Mr Masrur was an adolescent at the time of his offending and accepted he was open and honest in admitting his crimes and his motives at the time they were committed, that he did not know the other individuals involved and that he was articulate and to some degree persuasive, it remained the case that in the light of his unsatisfactory explanations of why he should be granted student membership its decision was properly reached. The Review Panel was right to conclude that Mr Masrur had failed to demonstrate “a real intellectual and emotional acceptance of how wrong crimes of dishonesty are together with a realisation of the impact which they may have on others”. Discussion[24]Having set out the background and summarised briefly the parties’ positions I turn to the disposal of this appeal.[25]As Mr Masrur properly accepts, the starting point for assessment is the simple fact that he has four convictions for offences of dishonesty. The principles established in Bolton and Jideofo make it clear that his offending falls into that category of offence where, as was held in Ndjoli v The Law Society [2008] EWCA Civ 585 at 21, “ It would be rare for the SRA to find that [the applicant] was of suitable character to be a solicitor”. That is the starting point. It is for Mr Masrur to demonstrate that his is a rare case.[26]The difficulty he faces is, as he appreciates, that he was convicted of serious offences of dishonesty. It is true to say that he was young at the time of the offence, only 15 years of age, and that some considerable time has elapsed between his convictions and the expiry of his sentence and today. In that time he has gone to university and gained a good law degree from Queen Mary University. He has provided evidence of his honesty in respect of Internet transactions and in respect of alerting his bank to an overpayment made into his account. He has worked for a money transfer operator, where he has been responsible for handling large sums of money. He has provided on 16 September 2008 a good reference from his employer in that business. No criticism can properly be made of him for not informing that employer of his convictions given the operation of the Rehabilitation of Offenders Act 1974. No real criticism can be made of him for submitting that reference with his certificate of enrolment application form. Mr Masrur is correct in his submission that the form does not require his initial referee to know of these matters, as it clearly states that details should be given of two further witnesses who do know about such matters. In addition, Mr Masrur has supplied two further references, one from the social worker allocated to supervise his supervision order and one from the Reverend Cowell. Both references post-date the Review Panel hearing, but can be taken into account in this appeal. These matters are strong pointers in his favour, as is his acceptance that what he did was wrong. It must also be considered that following his serendipitous arrest, he did after a short period of time co-operate fully with the police and plead guilty to the four offences. This too stands in his favour.[27]It must be considered however that Mr Masrur admits quite candidly that he knew that his actions that gave rise to his convictions were wrong at the time. He knew that they were wrong but, as I indicated earlier, concluded that there was little risk of his being caught. So he agreed to take part in the scheme proposed, according to him, by people he did not know who simply came up to him in the street, to defraud individuals through cashing stolen cheques. The manner in which they were cashed was clearly worked out, and worked out so as further to reduce the risk that he would be identified as part of the gang who carried out the scheme. The scheme itself was carried out over a period of time. Mr Masrur, it is fair to say, has in the past attempted improperly to minimise the seriousness of the offence by commenting that his own gain was minimal, but Mr Masrur says that he has learnt his lesson now and I see no reason to doubt that. Having been caught once, he submits that he now errs on the side of caution. He has changed over the last eight years.[28]The difficulty for him is that it is difficult to see how it can be truly said that Mr Masrur’s case is a rare one -- See per Sir Thomas Bingham MR in Bolton at page 519. Mr Masrur has however produced references. He has made a case that he has learned his lesson. He submitted in a letter to the Law Society that his case should be viewed more favourably than the case of Ms Begum who was one of the adjoining cases in Jideofo. I for my part cannot accept that. Ms Begum’s offending arose out of a background of considerable stress, so I do not take account of that point in favour of Mr Masrur.[29]The stark question here is this. Mr Masrur committed what were really very serious offences of dishonesty but he did so when he was only 15. Eight years have now gone by. It cannot fairly be said that this is a rare case, but it does appear to me that at some point it will be appropriate for the SRA to say that, notwithstanding that fact, these offences of dishonesty committed when Mr Masrur was 15 should not prevent him from being a solicitor for ever. The logic of saying an applicant must establish that this is a rare case might suggest that a person on these facts could never be admitted as a solicitor. It seems to me that that would be far to extreme a view to take, and that in the not too distant future it may well be appropriate for the SRA to say that, notwithstanding the dishonesty committed when Mr Masrur was 15, the time has come to say that his rehabilitation is complete and that he ought to be permitted to become a solicitor. However, I do not think that it would be right for me to say that the Review Panel was wrong to reach the conclusion that it reached when it reached it, and little time has passed since then.[30]As I indicated earlier, Mr Masrur can make a further application to the SRA provided that he makes it after 4 March 2010. It may well be that some time shortly after that the SRA will think it appropriate to grant a renewed application. At such an application, if he makes it, Mr Masrur should provide the fullest possible independent support for his statement that he is fully reformed and entirely honest. I hope that that will be possible in the future, but for the moment I think I have no alternative but to dismiss this appeal.

Order

Appeal dismissed ……………………………………. LORD CLARKE OF STONE-CUM-EBONY THE MASTER OF THE ROLLS LORD CLARKE: So, there it is. You’re not making an application for costs then? MR POWER: No, my Lord LORD CLARKE: I think that’s a very sensible decision if I may say so. Well, thank you very much.

Cited in 1 later judgment