Salsbury v The Law Society [2008] EWHC 889 (Admin)

Case No CO/11565/2007

[2008] EWHC 889 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 18th March 2008

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE DYSON

MR JUSTICE LLOYD JONES

Between

BRENDAN JOHN SALSBURYClaimant

Between

THE LAW SOCIETYDefendant

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Mr D Broatch (instructed by Holden & Co) appeared for Claimant

Mr G Marriott (instructed by Gorvins) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE LLOYD JONES: This is an appeal by Brendan John Salsbury pursuant to section 49 of the Solicitors Act 1974 against the decision of the Solicitors Disciplinary Tribunal given on 18th December 2007 ordering that he be struck off the Roll of Solicitors.

[2]Mr Salsbury was admitted as a solicitor in 1984. He trained at a firm in Hastings (Funnell & Perring), where he later worked for 20 years, becoming senior partner in 2000. Between 1999 and 2002 he acted as clerk to the trustees of his old school (William Parker School). The professional work in which he was engaged for the trustees was carried out in a personal capacity and not in his capacity as a partner in his firm. He received a modest annual stipend for his work as clerk to the trustees. However, during this period the school was undertaking extensive renovation works which entailed extra work for the clerk. It appears that the appellant agreed with the trustees that he would be paid separately for this additional work. It was the practice of the appellant to ask the trustees for cheques from time to time on account of his fees. They would write cheques on request. At the end of the year the appellant would submit an account showing what he had been paid. It appears that the trust was not well run. It was later investigated by the Charity Commission and criticised, and a number of the trustees resigned.

[3]On 15th November 2000 the appellant altered a cheque payable to him in the sum of £862.50 so that the amount payable was increased by £1,000 to £1,862.50. The explanation provided by the appellant was that he honestly believed that he was entitled to the extra money for additional work he had done since requesting the cheque, but he did not want to ask the trustees to amend the cheque or write a new one because he wished to avoid explaining why the amount due to him had increased. Indeed, I note that in due course the Solicitors Disciplinary Tribunal accepted the appellant's explanation that the amended figure was properly the sum due to him.

[4]At some point before the end of 2002 a general allegation was made against the appellant that he had received too much money from the trust during his time as clerk. When the allegation was made against the appellant, he resigned all his charitable posts, resigned as deputy coroner for East Sussex, and resigned as a partner in Funnell & Perring in December 2002. He remained for a brief time as an employee of the firm before leaving in July 2003 to join Holden & Co as an assistant solicitor. He remained employed as an assistant solicitor by Holden & Co until he was struck off.

[5]Around this time, on the advice of his solicitors, he made a without prejudice payment of £25,000 to the trust, according to the appellant, in an attempt to avoid any criminal allegations being made. In any event, the matter was referred to the police in August 2003 and the appellant was arrested in November 2003. Following a lengthy investigation, he was charged in 2005. He was indicted on 29 counts of theft, forgery, false accounting and obtaining money transfers by deception. His trial took place at Croydon Crown Court between 16th June 2006 and 13th July 2006 before His Honour Judge Stow QC and a jury. He was found guilty by the jury of one of the counts against him on 13th July 2006, that of obtaining a money transfer by deception contrary to section 15(a) of the Theft Act 1968. That charge related to the cheque which he had altered on 15th November 2000. He was acquitted on the other charges. He was sentenced on 13th July 2006 to a conditional discharge for 12 months and ordered to pay £300 towards the prosecution costs.

[6]In sentencing the appellant, Judge Stow observed that he proceeded on the basis that, so far as this count (count 5) was concerned, he had not been involved in a deception against the bank in circumstances where he did not believe that he was entitled to the extra £1,000. The judge said that he proceeded on the basis that he added the £1,000 to that cheque in circumstances where, although the appellant considered that he was entitled to it, he did not want to approach the trustees to ask for a further £1,000, or to ask them to countersign or initial any alterations to the cheque, because he would have the chore of explaining to them exactly how the amount suddenly jumped and increased by £1,000. The judge added, nevertheless, that it was plainly an offence which no solicitor should ever contemplate, let alone commit.

[7]An application for leave to appeal against conviction was abandoned following a refusal of leave by the single judge. The appellant reported himself to the Law Society. His case was referred to an adjudicator from the Law Society who decided on 14th February 2006 to impose a number of immediate conditions upon the appellant's practising certificate, and to refer his case to Solicitors Disciplinary Tribunal. That tribunal heard the case on 18th December 2007. The one allegation against the appellant was that he had been convicted of a criminal offence. That was of course admitted.

[8]On behalf of the appellant (the respondent at that hearing) it was submitted that he had considered that he was entitled to be paid the value of the cheque, that the judge had exceptionally imposed a very low sentence of 12 months' conditional discharge, that he had not been employed as a clerk in his capacity as a solicitor or through his firm, that Mr Salsbury had done no more than gain a payment due to him a few days earlier than would otherwise have been the case. It was said that he paid the money back to the trustees not because he had been overpaid but because he had been advised to do so.

[9]It was accepted that Mr Salsbury's actions had been irregular and sloppy, but he had not dishonestly sought money to which he was not entitled. It was also said that the tribunal should take the view that the scope of the dishonesty was at such a low level that it could, in the particular circumstances of the case, take an exceptional course. Reference was also made to the personal mitigation. It was accepted that in such cases personal mitigation is of secondary importance. Nevertheless, reference was made to the very significant consequences which Mr Salsbury had suffered in his private life as a result of these events.

[10]At the conclusion of the hearing, the tribunal ordered that the appellant be struck off the Roll of Solicitors. Its findings were published on 13th February 2008, and they include the following passages:

"24. The tribunal found the allegation to have been substantiated, indeed it was not contested. "25. The tribunal considered the matters placed before it with an element of sadness. The respondent had been guilty of an act of great stupidity when he sought to increase a cheque payable to him by a figure of £1,000. The tribunal accepted the respondent's explanation that the amended figure was properly the sum due to him but he nevertheless had been convicted of a criminal offence involving dishonesty. "26. The tribunal recognised that as a result of this act of stupidity the respondent had already suffered a great deal. "27. The respondent had very properly admitted the allegation, and the matter with which the tribunal had to grapple was the question of the appropriate sanction to be imposed upon the respondent. The tribunal gave very careful consideration to all of the submissions made on behalf of the respondent but it had to recognise that the fortunes of an individual did not carry as much weight as the need to protect the good reputation of the solicitors' profession. The profession's collective reputation for trustworthiness was its most valuable asset and the tribunal concluded that the public's perception of the profession's absolute trustworthiness would be damaged if a solicitor convicted of a criminal offence involving dishonesty were not to be made subject to the ultimate sanction. "28. The tribunal concluded that it was both appropriate and proportionate to order that the respondent be struck off the Roll of Solicitors."

It is against that decision which the appellant now appeals.

[11]The appellant seeks an order setting aside the tribunal's order and substituting a lesser penalty. It is said that the order for striking off was excessive and disproportionate in all the circumstances of the case. The appellant relies on the sentencing remarks of Judge Stow and the leniency of the sentence, the fact that the appellant believed that he was entitled to the money, the fact that his relationship with the trustees was not one of solicitor and client, and the substantial personal mitigation of the appellant to which it is said the tribunal failed to give adequate weight.

[12]On behalf of the appellant, the specific submission is made that the tribunal erred in applying the approach outlined in Bolton v The Law Society

[1994] 1 WLR 512

, without taking account of the more flexible approach indicated by Rose LJ in Langford v The Law Society

[2002] EWHC 2802 (Admin)

, which takes account of the impact of the Human Rights Act 1998. It is common ground before us that the starting point is Bolton. At page 518 of his judgment Sir Thomas Bingham, Master of the Rolls (as he then was), stated the principles in the following terms:

"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation."

[13]The Master of the Rolls then explained why the tribunal makes orders which may seem harsh. He explained that such orders are not primarily punitive, rather they are intended first to ensure that the offender does not have the opportunity to repeat the offence, and secondly, the more fundamental reason in his view, to maintain the reputation of the profession "as one in which every member, of whatever standing, may be trusted to the ends of the earth." He went on to state at page 519B:

"Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases."

He went on to conclude that the reputation of the professional is more important than the fortunes of an individual member.

[14]However, since the passing of the Human Rights Act 1998, a more flexile approach has emerged. In Ghosh v General Medical Council

[2001] 1 WLR 1915

, Lord Millett, delivering the judgment of the Privy Council in an appeal from the General Medical Council, stated at paragraph 34:

"... the board will accord an appropriate measure of respect to the judgement of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances. The Council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."

There is a passage to similar effect in the judgment of the Privy Council delivered by Lord Cooke in Preiss v General Dental Council

[2001] 1 WLR 1926

at paragraph 27. In Langford v The Law Society, to which I have already referred, Rose LJ observed:

"As to the approach, in general, which this court should adopt, it is not contested to the contrary by Mr Williams, on behalf of the Law Society, that Mr Foster's submission, based in particular on Ghosh v General Medical Council... and MacMahon v Council of the Law Society of Scotland..., is appropriate. That is to say, in dealing with an appeal of this kind, a greaterflexibility is now appropriate than was suggested in Bolton which was decided before the coming into force of the Human Rights Act."

[15]Against this background, it is said on behalf of the appellant that the tribunal fell into error by regarding the fact of conviction for an offence of dishonesty as automatically leading to a penalty of striking off, regardless of individual circumstances. Here the appellant relies in particular on the following sentence in the decision:

"The profession's collective reputation for trustworthiness was its most valuable asset and the tribunal concluded that the public's perception of the profession's absolute trustworthiness would be damaged if a solicitor convicted of a criminal offence involving dishonesty were not to be made subject to the ultimate sanction."

Mr Broatch, who appears on behalf of the appellant, submits that this is an application of the Bolton approach and not the flexible individual approach which should now be applied after the enactment of the Human Rights Act. He submits that the tribunal asked itself the wrong question. It asked, "Would the public expect a solicitor convicted of any offence of dishonesty to be stuck off?", whereas he submits they should have asked, "Would the public expect this solicitor, who has committed this form of dishonesty, to be struck off?" I should make it clear that I do not accept that the expectation of the public, which is the essence of both formulations put forward by Mr Broatch, is the sole or necessarily the governing consideration. However, addressing his submission, I am unable to accept that the tribunal failed to take account of the unusual circumstances in the case of Mr Salsbury. The sentence on which Mr Broatch relies has to be considered in context. When considered in the light of paragraphs 24-28 of the findings, which I have already set out, it is clear that the tribunal did have particular regard to all the individual circumstances of this case and of this appellant. Paragraph 25 puts at the forefront of the analysis the particular circumstances of this breach and the tribunal's acceptance that the amended figure on the cheque was properly due to him.

[16]To my mind the passage on which Mr Broatch relies simply makes the further point that the reputation of the profession for trustworthiness is also a relevant consideration which must be taken into account. That is undoubtedly correct. The tribunal was right to take account of the fact that in general the public perception of the profession would be damaged if a solicitor convicted of a criminal offence of dishonesty was not stuck off. Moreover, it is clear that the tribunal did give anxious consideration to the individual circumstances of this appellant. That is apparent from its reference in paragraph 27 of its findings to the fact that it had to grapple with the question of the appropriate sanction to impose, and the fact that we are told that it was in retirement for a considerable time. This was not, in my view, a case of a finding of dishonesty leading automatically to striking off without any consideration of the individual circumstances. Accordingly, I am unable to see on what basis it can be said that the tribunal approached the question on the wrong basis.

[17]However, that is not the end of the matter because in hearing this case we are exercising an appellate jurisdiction, not a supervisory jurisdiction. It is therefore appropriate to consider whether in all the particular circumstances of this case the order was excessive or disproportionately harsh. I have come to the conclusion that it is.

[18]I accept that Mr Salsbury was not acting as a solicitor in the course of his dealing with the trustees. However, this seems to me to make little difference. As a member of the profession, Mr Salsbury was required to maintain the highest standards of probity in all his dealings.

[19]I also accept that Judge Stow dealt very leniently with the appellant. However, he made clear that he felt he could take that exceptional course because of the consequences which he considered would inevitably fall on the appellant by reason of his conviction. While Judge Stow was, in my judgment, entirely justified in taking that course, it cannot assist the appellant here.

[20]The general sloppiness which forms the background to the arrangement between the appellant and the trustees cannot, to my mind, provide any justification or excuse for what he did. On it contrary, it was the responsibility of Mr Salsbury as a professional man to conduct the affairs of the trust properly.

[21]However, to my mind, there is force in the submissions made by Mr Broatch on behalf of the appellant in relation to the precise nature of what occurred in this case. I emphasise that this was an offence of a very unusual nature. It is an offence of dishonesty. The dishonesty, however, lies in that, by deception, this appellant caused the paying bank to believe that the cheque which he tendered was a good and proper order for the payment of £1,862.50 when it was not. The alteration was made and the cheque tendered in circumstances where, as the judge accepted, the appellant believed that the altered sum on the cheque was due and owing to him. Moreover, as the tribunal accepted, that altered sum was in fact due and owing to him. These wholly exceptional facts seem to me to bring this case right to the very bottom of the scale of dishonesty.

[22]Altering this cheque was, of course, a very wrong thing to do. Nevertheless, having regard to the approach which this court now adopts, as formulated in Langford and the other authorities to which I have referred, it does seem to me that there must be a small residual category of cases of dishonesty where striking off may not be appropriate. After giving this matter anxious consideration, I have come to the view that this case falls within that very small residual category. I am fortified in that conclusion when I have regard to the personal mitigation which applies in this case. I appreciate that this is not a weighty factor in cases of this kind for the reasons given by the Master of the Rolls in Bolton. Nevertheless, I do bear in mind that while the professional consequences in any case of this sort will inevitably be catastrophic, the personal consequences in the private life of this appellant have been particularly grave.

[23]Having regard to all of these considerations, I have come to the conclusion that the order made by the tribunal was excessive and disproportionately harsh, and for my part I would propose to set aside that order and to substitute an order for 3 years' suspension.

LORD JUSTICE DYSON: I agree.

[26]MR BROATCH: Would your Lordships order that the suspension begin on 18th December, which was the day when his striking off began?

[27]MR MARRIOTT: That would seem right, my Lord.

LORD JUSTICE DYSON: Very well, we will do that.

[29]MR BROATCH: My Lord, the appellant asks for an order for costs. I have had an opportunity of discussing costs with my learned friend in either event of what happened. The appellant's costs are in the sum of £5483.75. I would ask for an order in that sum.

[30]MR MARRIOTT: I do not think I can resist that, my Lord. I agree in principle.

LORD JUSTICE DYSON: Do you say anything about the sum?

[32]MR MARRIOTT: No, I agree the amount.

LORD JUSTICE DYSON: Oh, you agree the amount. So you do not oppose the application?

[34]MR MARRIOTT: I cannot resist the application, my Lord. I just have one application to make and that would be for permission to appeal to the Court of Appeal. The reasons for that are that the Law Society take the view that the punishment, the penalty imposed by the tribunal, was not disproportionate, not excessive in view of the extent of the criminality and the conviction, and I would ask for permission to appeal from this court.

LORD JUSTICE DYSON: No, I think you will have to ask the Court of Appeal for that.

[36]MR MARRIOTT: I thought I might.