SRA HQ: regulator knew what it was doing over burden of proof
The Solicitors Disciplinary Tribunal (SDT) has criticised the Solicitors Regulation Authority (SRA) after quashing restrictions and disciplinary sanctions the regulator had imposed on an immigration caseworker.
In the ruling – one of the few successful challenges to the SRA’s disciplinary decision-making – the tribunal also hit out at the SRA for causing problems by using the civil standard of proof when issuing sanctions given that the SDT uses the criminal standard.
It is the latest in a series of cases where the tribunal has found fault with the SRA.
An SRA adjudicator made an order under section 43 of the Solicitors Act 1974 to restrict Huseyin Arslan from working in the profession without the regulator’s permission, and under section 44, issued a rebuke and £500 fine.
He was an immigration caseworker at a firm named only as ‘DL’, who was employed for two years before setting up his own company and becoming a self-employed consultant to the firm on 50% of the profit costs he generated.
In June 2013, the SRA received a complaint of serious sexual harassment by Mr Arslan against an asylum seeker, but did not notify him of it until Christmas Eve. By the end of February 2014, the SRA concluded that there was insufficient evidence to support the complaint, but the SDT noted that neither Mr Arslan nor his firm – which had suspended him because of the complaint – were told of this for “some months”.
The SRA continued to investigate Mr Arslan, however, because of discrepencies between documents he had supplied in his defence and the original versions on the firm’s file. He was accused of creating attendance notes and altering original documents to support his case.
The adjudicator sanctioned him in January 2015 having found the allegations proved in relation to three of the five documents under review.
But on Mr Arslan’s appeal, the tribunal – having considered his account of events, what it considered failures in the SRA’s investigation and the way the adjudicator had approached the task – quashed the section 43 order and revoked the disciplinary sanctions.
It said: “The adjudicator took insufficient account of the evidence available to him, and did not fully explore the gaps in the evidence or the appellant’s explanations. There was no evidence of bias on the part of the adjudicator, but his decisions were wrong on the facts, and where indicated, in law.”
It added: “[Mr Arslan], having been accused in December 2013 of sexually harassing a vulnerable client, was not informed until August 2014, at the earliest, that that allegation was no longer being investigated due to a lack of evidence. This was despite the decision to close the matter having been taken on or around 27 February 2014.
“The tribunal observed that this was an entirely unsatisfactory situation; however, this had no bearing on their decisions. Further, the tribunal found that it was inappropriate for the SRA to operate its powers to impose a section 43 order and make disciplinary decisions under the statutory framework on the same set of underlying facts, when the use of its disciplinary powers was said to be for minor matters, whereas a section 43 order was for serious matters of misconduct.”
The SDT said this would have been the case on either the civil or criminal standard, but had decided that it would operate, as usual, on the criminal standard on the appeal, even though the SRA worked to the civil standard.
“To employ a different standard, depending upon how the matter appeared before the tribunal (i.e. as a review or at first instance) would lead to… an ‘undesirable and unprincipled’ result. There was no way of ‘squaring the circle’ and this was the one contradiction that could not be acceptable. It would lead to some respondents not being subject to section 43 orders when brought before the tribunal rather than when brought before the [SRA].
“It was also a contradiction that a review should have a different standard of proof than the decision being reviewed. This meant that section 43 orders entirely correctly decided by the respondent on the civil standard might be overturned at a review hearing conducted to a higher standard of proof. This was a conundrum, as only one of these two unsatisfactory results could be prevented.
“The tribunal decided that the former was totally unacceptable, whereas the latter was a lesser evil, and – fundamentally – could not lead to injustice, whereas the former could. The person subject to a section 43 order had the option to appeal. The respondent was then in no worse position than if they had brought the case before the tribunal in the first place.”
Further, in this case, the allegations against Mr Arslan were “tantamount to criminal conduct” and so should be subject to the criminal standard.
The tribunal also made clear its annoyance that the SRA had brought this situation about. “The tribunal determined that the decision to use the civil standard was taken by the [SRA], knowing the standard adopted by the tribunal, and that the tribunal was the appellate body.
“That there had been consultation about this standard, including with the tribunal, meant only that the conscious decision to create this anomaly had been an informed decision: it was not a lacuna or an unintended consequence. There had been no attendant legislative change to alter the standard of proof used by the tribunal, which continued to adhere to the clear case law binding it as to the standard of proof it should adopt.”
The tribunal also ruled that Mr Arslan’s self-employed status did not affect the ability to make him subject to sections 43 and 44.
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