Lacking Integrity – The Waters Re-Muddied in Adetoye v The Solicitors Regulation Authority

After Wingate v SRA [2018] EWCA Civ 366 it was thought that Lord Justice Jackson had brought some clarity to the meaning of ‘lacking integrity’. Whilst the definition remained wide, it was clarified as different from, and involving adherence to a higher standard than, dishonesty:

“Integrity connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.”

Pre-Wingate, Mostyn J had expressed the view that dishonesty and lacking integrity were much the same thing. His decision in Adetoye v SRA [2019] EWHC 707 (Admin) is important in two respects, first because it re-introduces confusion into this area, and second because of its comments on sanction.

In terms of the definition of lacking integrity, Mostyn J correctly referred to the authorities of Williams v SRA [2017] EWHC 1478 (Admin) and Wingate as cited above. In a troubling passage, he then went on as follows:

“This being so, it is quite difficult to understand why in a professional misconduct case dishonesty is conduct to which no more obloquy could possibly attach, and, on proof of it, will lead, almost invariably, to the culprit being struck off. If integrity denotes a higher moral standard than honesty, then it must surely follow that want of integrity is baser conduct than common-or-garden dishonesty. But the sanctions they respectively attract do not reflect this hierarchy of turpitude…

 …Doing the best I can to reconcile these conflicting messages from the higher courts I consider that I have to regard acting without integrity as involving greater moral turpitude than mere dishonesty but that, paradoxically, the former will generally attract a lesser sentence than the latter.”

It is difficult to see what Mostyn J identifies as conflicting messages. Because the standard of integrity is higher than mere honesty, falling short of it is less serious. That is why it attracts a lesser sanction. Failing to get an A* is less of a threat to the public and the reputation of the profession than failing to get a C. The idea that acting without integrity involves greater “moral turpitude” than dishonesty is, to say the least, troubling.

Also troubling was Mostyn J’s reasoning in upholding the decision that was ultimately under appeal, a suspension based upon findings of lacking integrity. One of the criticisms made by the appellant was that the original tribunal did not appear to have considered a restriction order after discounting no order or a reprimand. Mostyn J found the tribunal had implicitly considered this, but then went on to say:

“Moreover, for the reasons I have stated above, I take the view that where want of integrity is proved the starting point should be suspension. A tribunal can work its way downwards from suspension if there are exceptional mitigating factors but suspension is where it should start.”

This appears to violate the long-standing principle that the tribunal should work its way up from the least severe sanction. Moreover, Mostyn J explicitly relies in finding that suspension is the starting point, on his earlier finding that acting without integrity involves greater moral turpitude than dishonesty.

Especially given the increasing use of ‘lacking integrity’ before the healthcare regulators as well as the SRA, defence practitioners may rightly worry that this authority appears to have real teeth when it comes to sanction.

The intervention of the Court of Appeal may again be required. For the moment, relying on the finding that the tribunal did implicitly consider a restriction order, it can be argued that the further comments on sanction were obiter. But this remains an unwelcome development in an area, where “lacking integrity”, whilst still an unsatisfactorily elastic concept, had at least reached a relatively principled point.