Donovan: The SRA has the powers it needs to investigate
Members of the public may “reasonably question” the ‘wait and see’ approach of the Solicitors Regulation Authority (SRA) to disciplinary action in the Post Office scandal, a regulatory expert and former SRA manager has said.
Andrew Donovan, founder of consultancy The Compliance Office, also said the public inquiry into the Post Office Horizon computer system, chaired by retired High Court judge Sir Wyn Williams, did not “appear to have picked up on certain regulatory discrepancies”.
Paul Philip, chief executive of the SRA, said last month that the regulator wanted to wait until the public inquiry ends this summer, but could take action if a solicitor presented an immediate and ongoing risk to the public and users of legal services. But the SRA had yet to see evidence of this.
He added that he would also expect the inquiry to contact the SRA if it thought action needed to be taken now.
Mr Donovan said that, while regulators “should be mindful not to prejudice other parallel investigations”, there was “no blanket prohibition on multiple jurisdictions considering similar issues (particularly in the absence of criminal proceedings)”.
The SRA “simply does not require a public inquiry to investigate solicitors” and had “incredibly wide powers to obtain documents and require people to attend for interview”.
Those powers could override legal professional privilege and extended to organisations which “are not in the business of law”, such as the Post Office.
“The SRA exercised some of those powers in respect of the Post Office papers approaching two years ago and has stated that it has now amassed tens of thousands of pages of evidence.
“Looking at the SRA’s powers, it is difficult to imagine what information the SRA would be unable obtain without the aid of the inquiry, or indeed what the SRA would do if a public inquiry did not happen to be in place.”
In a blog, Mr Donovan, previously a legal policy and advice manager at the SRA and board member at CILEx Regulation, said he had “some concern” that the SRA view appeared to be “informed at least in part” by the fact that the inquiry had not contacted it to recommend more urgent action.
He went on: “Is the inquiry really best placed to monitor those risks and to make such assessments? For those with in-depth knowledge of the solicitor regulatory regime, some of the evidence provided to the inquiry doesn’t always make sense.
“The inquiry, through no fault of their own, I would add, do not appear to have picked up on certain regulatory discrepancies.
“In one case, the evidence provided to the inquiry appeared to be inaccurate in some parts and directly contradictory in another, with otherwise seemingly clear contemporaneous evidence being disputed in an at times quite extraordinary manner.”
Mr Donovan said it should be remembered that there had already been “a number of very concerning questions” raised by the Court of Appeal’s 2021 judgment about the way in which the Post Office’s private criminal prosecutions were pursued.
“The SRA undoubtedly have a difficult task on their hands and awaiting the findings of the Post Office Horizon inquiry may well be preferable.
“However, the excoriating Court of Appeal decision is now nearly three years old and there is perhaps reason to doubt the SRA’s strategy of relying on the inquiry to identify ongoing risks posed by solicitors for it.
“Some members of the public may hear the evidence coming out of the inquiry and reasonably question a wait and see approach in some instances.
“The profession may also wonder why a scandal genuinely capable of undermining faith in our justice system is not showing more outward signs of progress, particularly given the disciplinary action being taken by the SRA in other matters which frankly pose little risk to the public.”
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