Integrity and public trust: Avoiding an unruly mess

Last November, the Divisional Court handed down judgment in Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin), a challenge to the judgment of the Solicitors Disciplinary Tribunal (SDT) on complaints of misconduct. 

The complaints were against Ryan Beckwith, a former partner at Freshfields Bruckhaus Deringer. The alleged misconduct concerned a so-called ‘sexual encounter’ between Beckwith and a junior female colleague, described as person A before the SDT to protect her anonymity. 

The incident, which took place in the summer of 2016, followed an intoxicated evening at a pub opposite the firm’s London office.  It concluded with person A waking up to find herself in her apartment, undressed, with Beckwith touching her body. 

The outcome

The Divisional Court allowed the appeal, overturning the SDT’s findings that Beckwith had acted contrary to what were (under the previous regulatory code in force at the time of the SDT hearing) principle 2 (acting with integrity) and principle 6 (behaving in a way that maintains the trust the public places in you and in the provision of legal services) of the SRA code of conduct. 
 
Costs

Their Lordships therefore quashed the SDT’s order that Beckwith pay a fine of £35,000 and set aside the £200,000 costs order in favour of the SRA (the SRA had claimed £343,957.08). 

They said: “Regulators pursue disciplinary proceedings in the public interest; the costs they incur should reflect that responsibility. 

This is no more than one aspect of an imperative that applies to all regulators – they must exercise their regulatory powers proportionately. 

“The costs claimed by the SRA in respect of the proceedings before the Tribunal were alarming… We can see no basis on which the amount claimed by the SRA could provide any guide at all to what it would have been reasonable and proportionate for the Appellant to pay, even if the SRA had succeeded on its case in its entirety. 

Taking matters in the round, the Tribunal’s reasons for the costs order made… are not coherent.”

However, the court declined to accede to a submission made on behalf of Beckwith that this was a case where the SRA should pay his costs of proceedings before the SDT. 

There were no exceptional circumstances to justify departing from the ordinary position that costs orders are not made against regulators in respect of tribunal hearings. 

The court’s reasoning

The Divisional Court’s consideration of the appeal grounds is divided into three parts. A common thread in the whole judgment, however, is a focus on the content of the SRA handbook and code of conduct. 

It was essential, in the court’s view, to tie the scope of regulation by the SRA and the SDT to a proper interpretation of the standards in the handbook. 
 
Without such restriction, the principles were “apt to become unruly”, creating a danger that the regulator will illegitimately intrude upon the sphere of private life. 

In the first part of the judgment, the court dismissed Beckwith’s argument that the concept of ‘professional misconduct’ was the correct boundary of regulatory incursion into professional life. 

While a concept of professional misconduct might be relevant in other regulatory regimes where it was explicitly mentioned, the standards in the SRA handbook were not, in the view of the court, formulated by reference to this in any defined way. 

However, the court went on to hold that it was, nonetheless, necessary to consider as a matter of substance whether the misconduct found as a matter of fact to have occurred, engaged principle 2 and or principle 6 both in qualitative terms (nature of the conduct proved) and in the scope of application of those principles (conduct occurring outside work). 

While the court emphasised the high threshold that must be reached before it could intervene in the decision of a specialist tribunal, the court said that on the facts found by the SDT, it could not have properly concluded that principles 2 and 6 had been breached. 

When considering and applying the SRA principles, the court emphasised that the SDT could not have “carte blanche to decide what, for the purposes of the handbook, the requirement to act with integrity means”. 

To ensure coherent interpretation of the principles and sufficient predictability in their application and boundaries, these obligations had to be tied to the contents of the handbook. 

More specifically, the court found that the critical matter both for principle 2 and principle 6 was whether Beckwith’s conduct amounted to an abuse of his position of seniority or authority in the firm as regarding person A. 

The requirement to act with integrity as encapsulated in principle 2 was a requirement not to take advantage of others by reason of a solicitor’s professional status. 

With regard to principle 6, the court agreed with the SRA that “seriously abusive behaviour by a more senior against a more junior member of the profession is clearly capable of damaging public trust in the profession”, however, it found that Beckwith’s conduct (while damaging to his personal reputation) was not sufficient to affect “either his own reputation as a provider of legal services or the reputation of his profession”. 

Effectively, once the SDT had found that he had not abused his position of seniority and authority, it could not have found that principle 2 or principle 6 were breached. 

Finally, the court considered whether article 8(1) of the European Court of Human Rights (ECHR) was engaged by the breadth of principle 2 and principle 6 as interpreted by the SDT; that the rules were not sufficiently precise to satisfy the requirements of article 8(2); and did not strike a fair balance between the individual right and legitimate public interests. 

The court found that article 8 could be engaged, stating that “there can be no hard and fast rule either that regulation under the handbook may never be directed to the regulated person’s private life, or than any/every aspect of her private life is liable to scrutiny”. 

However, determining the requirements of each principle by reference to the contents of the handbook met the required standard for legal certainty, and a fair balance between the right to respect for private life and the public interest in the regulation of the profession. 

A high threshold

What becomes clear on reading the judgment is that the Divisional Court was focused upon placing some limit on the scope the principles by setting a high threshold for intervention by the regulator in the private lives of those it regulates. 
 
While the court expressly confined its findings to the circumstances of the case before it, emphasising the need to determine the content of the requirement to act with integrity on a case-by-case basis, it made a number of statements of more general application. 

For example, at multiple points in its judgment the court referred to the need for the scope of the principles to be predictable and coherent. 

It warned that the legitimacy of the regulatory process would be undermined if the obligation to act with integrity were drawn more widely than what was necessary to regulate professional conduct and fitness to practise, and maintain discipline within the profession. 

In the court’s view, there was a qualitative distinction between conduct which was wrong, inappropriate or even disgraceful (notwithstanding the absence of any allegation of lack of consent), and conduct which did or might tend nonetheless to undermine public trust in the solicitors’ profession. 

What that ‘qualitative distinction’ might be would vary from case to case, but had to have some grounding in the standards contained in the SRA handbook. 

The court’s judgment provides welcome clarity on the meaning of integrity for the purposes of the SRA principles. 

As recognised by the court in the present case and by the Court of Appeal in Wingate, the concept of integrity is broader and more nebulous than that of honesty. 

While the court in Wingate agreed with previous judicial findings that “it is not possible to formulate an all-purpose, comprehensive definition of integrity”, it did give a number of illustrations of what lies outside this standard, albeit in the context of a solicitor’s professional activities. 
 
The judgment in Beckwith goes further, tying the interpretation of the principle of integrity closely to the content of the SRA handbook. 

In this regard, the case can be seen as a further step in the direction of travel identified by the Court of Appeal in Wingate, with “the broad contours of what integrity means, at least in the context of professional regulation… becoming clearer”. 

Impact on person A

One issue notable by its absence in the judgment is any real consideration of the position of person A in the alleged misconduct and the impact on her of Beckwith’s behaviour. 

The court summarised the SDT’s findings as “both had had too much to drink, and this impaired the judgement of both of them”. While the SDT declined to make a finding on consent (considering it did not need to do so to come to the conclusion that Beckwith had acted in breach of the SRA principles), the court treated the failure even to allege a lack of consent as a relevant consideration pointing towards a finding that there was no breach of the principles. 
 
It did not refer to the SDT’s findings that Beckwith knew person A had been drinking a significant amount of alcohol (much of which had been purchased by him for her); that he had only been invited into her home to use the bathroom; and that it was he who had stated he needed to use the bathroom. 

The court also gave no consideration to the fact that person A might have been more vulnerable by reason of her inebriation, age or gender. 

Indeed, in what is likely to become often quoted in similar cases, the court aphoristically stated that “regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit” – implicitly denying the relevance for professional regulators of the #metoo movement and wider concerns about the treatment of women and minorities in the professional world. 

It can be argued that the court itself adopted an overly dogmatic approach. While it accepted that a professional disciplinary tribunal is well-equipped to identify want of integrity and noted the high threshold before a court should intervene, it was unwilling to defer to the SDT’s evaluative judgment in the present case. 

It rejected the relevance of public opinion, even though public trust was and is central to principle 6. 

What the drafters of the SRA handbook had in mind in 2011 may not necessarily reflect the enhanced expectations of the public in 2016 and 2018; and what the Divisional Court judges consider necessary for the public to maintain trust in the profession may not always reflect the view of the public itself. 

Beckwith also significantly limits the scope of the SRA principles in relation to matters which do not relate to professional life, arguably at the expense of more junior and or vulnerable members of the profession. 

The final word – for now

In a rare comment on a concluded prosecution, SRA chair Anna Bradley issued a statement on 21 December 2020 defending the SRA’s decision to bring the Beckwith case before the SDT. 

She emphasised that “the case was properly brought – and certified by the Tribunal – on evidence gathered in response to a serious complaint” and welcomed the court’s confirmation that the SRA principles could at times reach into a solicitor’s personal life. However, Bradley also confirmed that the SRA would not be appealing the judgment. 

For now, then, the Divisional Court has had the last word on the scope and interpretation of the SRA principles. 
 
Esther Drabkin-Reiter is a barrister at Francis Taylor Building ftbchambers.co.uk

Jeremy Phillips QC, also of Francis Taylor Building; and Geoffrey Williams QC of Farrar’s Building collaborated in the preparation of this article
 

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