Solicitor Used Disabled Son’s Blue Badge

A solicitor who was struck off the Roll by the Solicitors Disciplinary Tribunal after conviction and fine in the Crown Court on three counts (covering 9 separate incidents of parking) of using his son’s disabled blue badge with intent to deceive appealed to the Administrative Court: Nazari v Solicitors Regulation Authority [2022] EWHC 1574 (Admin): Lang J

Before the Tribunal the Solicitor represented himself although earlier he had legal representation. At the stage when he was represented he admitted all allegations, including dishonesty, but before the Tribunal said he was not sure he had understood the concept of dishonesty correctly. He gave evidence that he did not know he was not allowed to use the blue badge when his son was not in the car, that he made an honest mistake, and that he had not intended to deceive.

The Tribunal found that the Solicitor had breached Principle 2 (You must act with integrity) and Principle 6 (You must behave in a way that maintains the trust the public places in you and in the provision of legal services).

Her Ladyship dismissed each of the five grounds of appeal.

Ground 1: Refusal of Adjournment Application

The Solicitor had sufficient time to instruct a legal representative whose fees he could afford. He was legally represented by a solicitor advocate who served, on his behalf, a written answer to the Rule 12 statement issued by the SRA. The onus was upon him to confirm the fees at an early date to ensure he could afford them. By the time of the adjournment application, the hearing was imminent. The Tribunal was entitled to apply the general rule in its Guidance Note which provided that inability to secure representation would not justify an adjournment.

Furthermore, the Tribunal was entitled to find that the medical evidence was inadequate. The medical evidence did not mention whether the conditions to which it referred were current or what the  prognosis was. There as no indication whether any current conditions might impact on the Solicitor’s ability to attend the Tribunal hearing or what reasonable adjustments could be made to enable him to participate.

Ground 2: Failing to go behind the conviction

The Solicitor submitted that the Tribunal erred in finding that he was dishonest and, in the exceptional circumstances of this case, the Tribunal ought to have looked behind the conviction and considered whether the Solicitor genuinely believed that he was entitled to use the blue badge in the way that he did. It should have considered whether he was guilty of recklessness or conduct that lacked integrity rather than dishonesty.

There were sound public policy reasons why criminal convictions were held to constitute conclusive proof of guilt in subsequent proceedings. A departure from that approach was only justified where there was new evidence that entirely changed the nature of the case.

Ground 3: Deception not distinguished from dishonesty

The Tribunal correctly directed itself in law and made findings and reached conclusions which it was entitled to reach on the evidence before it. The Tribunal clearly appreciated that this was an offence of deception, and correctly applied the test for dishonesty to the facts of the offence.

Ground 4: Striking the Solicitor from the Roll

The Tribunal correctly directed itself in law and in accordance with the leading Divisional Court cases on exceptional circumstances, as well as in accordance with the Guidance Note on sanctions.

It then proceeded to apply the relevant principles to the specific facts of the present case. In its judgment it took full account of the Recorder’s sentencing remarks.

Furthermore, the Tribunal correctly applied the principle in James that the most significant factor in the evaluation of exceptional circumstances was “the nature and extent of the dishonesty”. It was entitled to find that the Solicitor’s misconduct, which led to a criminal conviction, harmed the reputation of the profession and undermined the public’s trust in it.

Its conclusion that the misconduct was aggravated by dishonesty and that the offences had been deliberate, calculated and continued over a period of time, was one which was clearly open to it on the evidence.

Ground 5: Legitimate Expectation

The SRA notice by an investigation officer was an investigator’s report setting out the evidence, assessed the Solicitor’s conduct and submitted recommendations as to the action to be taken, to an SRA adjudicator. The investigation officer recommended that the Solicitor be ordered to pay a financial penalty of £2,000 and costs without referral to the Tribunal.

The investigation officer was not the decision-maker; she was the investigator, whose role was to investigate and make recommendations.

The authorised decision-maker did not accept the investigation officer’s recommendation of a fine and referred the case back to consider whether the Solicitor should be referred to the Tribunal given the “elements of intention and deception that were proved to the criminal standard of proof”. That decision was communicated to the Solicitor. Thereafter, a revised notice was issued recommending the authorised decision-maker to make a referral to the Tribunal.

It was clear from the terms of the report and covering letter, and the statutory context in which they were sent, that it was only a recommendation, not a decision, and that a decision was to follow.

Therefore, the report and the letter were not clear and unambiguous statements, devoid of relevant qualification, which were capable of giving rise to a legitimate expectation on the part of the Solicitor that he would not be referred to the Tribunal, and that he would not receive a more severe sanction than a fine. In the Court’s judgment, no legitimate expectation had been established by the Solicitor Appellant.

Costs were summarily assessed against the Solicitor Appellant in the sum of £18,000.

Case cited in judgment

Legal Framework

Salsbury v Law Society [2009] 1 WLR 1286
Adesemowo v Solicitors Regulation Authority [2013] EWHC 2020 (Admin)
Ali v Solicitors Regulation Authority  [2021] EWHC 2709 (Admin)
Solicitors Regulation Authority v Day [2018] EWHC 2726 (Admin)
Solicitors Regulation Authority v Good [2019] EWHC 817 (Admin)
Solicitors Regulation Authority v Siaw [2019] EWHC 2737 (Admin)
Solicitors Regulation Authority v Siaw [2019] EWHC 2737 (Admin)

Dishonesty

Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67
Wingate v Solicitors Regulation Authority [2018] 1 WLR 3969

Refusal of Adjournment Application

The Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734 (Ch)
Andreou v Lord Chancellor [2002] EWCA Civ 1192
Brabazon-Drenning v UKCC [2001] HRLR 6

Failing to go behind conviction

Hunter v Chief Constable West Midlands Police & Ors [1982] AC 529
El Diwany v Solicitors Regulation Authority [2021] EWHC 275 (Admin)
Shepherd v Solicitors Regulation Authority (CO/3076/95)

Deception not distinguished from dishonesty

Ahmed (general grounds of refusal – material non-disclosure) Pakistan [2011] UKUT 00351 (IAC)

Striking from the Roll

Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin)
Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin)

Legitimate Expectation

R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] AC 453
R v Inland Revenue Comrs Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545
R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115
Re Finucane’s Application for Judicial Review [2019] UKSC 7
Paponette and Ors v Attorney General of Trinidad and Tobago [2010] UKPC 32
R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397
R (Patel) v General Medical Council [2013] EWCA Civ 327
The Association of British Civilian Internees – Far Eastern Region v. Secretary of State for Defence [2003] QB 1397