The SRA issued some revised guidance in relation to allegations of sexual misconduct, impropriety and other forms of criminal conduct earlier this month. The first and more specific issue here was, of course, much in the legal news a couple of years ago, and eventually resulted in a substantial costs award against the SRA in the case of Ryan Beckwith v SRA [2020] EWHC 3231. The second item addresses the specific circumstances when the crime involves matters of personal principles or social conscience. The views now expressed in relation to sexual misconduct have also resulted in further guidance being published on the issue of acting with integrity as required by Principle 5 in the Standards and Regulations, and in the light of the Beckwith case decision in particular.
Sexual misconduct
Turning to the issue of sexual misconduct first this is now defined as “sexual behaviour which raises a regulatory issue”. This, of course, is circular in that it depends on the interpretation of when a regulatory issue might arise under the SRA’s regime. Reassuringly for those many of us who met our spouses or life partners as colleagues at work, the guidance states that “consensual sexual relationships between colleagues will not, without more, be investigated or sanctioned”. The concerns are stated to be more to do with the situation where an individual abuses their professional position to pursue an “improper sexual or emotional relationship or encounter with a client, a colleague or anyone else”. This is elaborated by example 1 in the note which deals with conversations that might occur within the office for the most part, and does recognise that the words or actions in question might be “simply awkward, clumsy and unwise”, rather than abusive.
The guidance states that the Beckwith decision endorsed the “regulation of professionals in the public interest by reference to private conduct”. That may indeed have been so, but para 37 of that judgment stated that there had been no abuse of authority and seniority on the facts of this case, and this therefore threw the Tribunal’s finding that there had been a breach of Principle 2 (integrity) of the 2011 Handbook into question. Likewise, it was ruled that there had been no breach of the then Principle 6 in the case, and the prohibition of behaving in such a way that would adversely affect public trust and confidence. The view was also expressed at para 43 that unless this principle was interpreted by “careful and realistic consideration” of the Code’s standards there was the risk that it would be “apt to become unruly”.
More generally the court also concluded at para 58 that regulators must exercise their powers proportionately, and that cases must be conducted with proper regard to the need for those subject to such proceedings to be able to defend themselves without incurring excessive costs. The clear conclusion was that for events in a solicitor’s private life to be subject to disciplinary measures there must be a clear link to the professional regulations which, in this case, had not been so. it should also be stressed that this successful appeal led to the loss of a substantial sum of practising certificate income which clearly could have been used for other more justifiable purposes.
Proximity to practice
Despite the setback that the eventual outcome of the Beckwith case was for the SRA they continue to assert that sexual misconduct occurring entirely outside practice might be so serious that it will raise a regulatory issue, and so will still be sufficient to amount to professional misconduct. The contrary could not realistically be argued in the event of rape or other serious criminal sexual assaults but the example provided is not so extreme, with “non-consensual touching even when no criminal proceedings ensue” as the lesser example quoted.
Further on it is recognised that the proximity to practice may well be a relevant factor, such as incidents which occur at a family party being less likely to result in proceedings than those at a work-related event. Nonetheless, the note states that “some complaints are so serious that even if they arise from a private setting we will consider bringing proceedings”, and some may see this as being despite the Beckwith decision which threw doubt on this assertion in all cases of a non-criminal nature.
COLP reporting
So, where does this leave the hard-pressed COLP in attempting to judge if there has been a serious breach of the SRA’s regulations at a work event, or even instead at a social event involving one or more of their colleagues? So open is this latest guidance it is difficult to say, but it is clear that the SRA will continue to take the view that situations that are likely to be judged to be distasteful or involving poor behaviour rather than those resulting in a criminal charge should be seen to potentially amount to such.
For more see https://www.sra.org.uk/solicitors/guidance/workplace-environment/.
Criminal behaviour
We also now have further guidance on the other issue of convictions arising from matters of principle or social conscience which was also issued on the 1st September. The guidance recognises that although solicitors are expected to behave with integrity and in a manner that promotes public trust and confidence in the profession, the SRA will also accept that they may have strong opinions on moral and ethical issues, and in relation to environmental or racial issues in particular. This in turn means that there must also be freedom of speech and the right to protest for solicitors as for all others. Where this results in peaceful protest there should be no issue, but where the regulator receives reports from members of the public concerns as to damaging public confidence in the profession will arise, and so an investigation is likely to follow.
Sometimes a conviction may arise from an event that had been planned to be peaceful or principled in some way. In such circumstances anyone involved should not expect to be refused a practising certificate as long as there has been no serious risk of harm to the public and/or criminal damage, but that even here the risk of disciplinary action should be borne in mind. Whatever the particular circumstances, however, prompt reporting is encouraged and since this might result in disciplinary action COLPs should bear in mind para 9.1(d) of the Code of Conduct for Firms and the need to inform the SRA promptly of any facts or matters that they reasonably believe should be brought to their attention in order that they can investigate whether a “serious breach of its regulatory arrangements” might have occurred, or if it might wish to otherwise exercise its regulatory powers.
For the SRA guidance on the treatment of convictions arising from matters of principle or social conscience see; https://www.sra.org.uk/solicitors/guidance/convictions-arising-social-conscience/
And finally, for the revised guidance on acting with integrity see: https://www.sra.org.uk/solicitors/guidance/acting-with-integrity/.