News Professional Discipline 3rd Dec 2020

Beckwith v SRA – Private lives restored?

The ex-Freshfield partner Ryan Beckwith has successfully overturned findings that his sexual activity with an associate in his department breached his duties to act with integrity and behave in a way that maintains public trust. Important for too many reasons to cover in a single newsflash, Mr Justice Swift’s judgment is primarily examined here as a curtailment on the ever-increasing reach of regulators into a professional’s life outside of their work.

The Solicitors Disciplinary Tribunal had found that Mr Beckwith inappropriately initiated sexual activity with an associate in his department after they had both been drinking at the pub. Both were intoxicated. They returned to the associate’s home, Mr Beckwith asking to come in so that he could use the toilet. There was a “sexual encounter”. There was no allegation that the activity was not consensual.

Crucially, whilst it was accepted that Mr Beckwith was in a position of authority over Person A, the Tribunal rejected an allegation that Mr Beckwith acted in abuse of his position of seniority or authority. They did however consider that Mr Beckwith’s actions were inappropriate, and in breach of Principles 2 and 6 of the Handbook in force at the time, which required a solicitor to act with integrity, and to behave in a way that maintains the trust the public places in them and the provision of legal services. Both of these obligations are maintained in the updated Principles.

The High Court judgment reviewed the authorities on integrity, and reiterated three key principles:

  1. There is an association between the notion of having integrity and adherence to the ethical standards of the profession;
  2. There is an expectation that professionals may be held to a higher standard than would apply to those outside the profession; and,
  3. A regulatory obligation to act with integrity does not require professional people to be paragons of virtue.

Mr Justice Swift found that Mr Beckwith did not breach Principles 2 and 6. Those Principles, including public expectations and the concept of integrity, had to be interpreted with reference to the provisions of the Handbook. That is what made them sufficiently clear, and informed how the line is drawn between matters in a solicitor’s private life that fall within a regulator’s remit and matters that do not. The relevant part of the Handbook required solicitors not to take advantage of others. Because there was no abuse of trust, and Mr Beckwith had not taken advantage of Person A, his actions did not breach Principles 2 and 6. The Tribunal’s findings, fine of £35,000, and costs order for £200,000, were therefore quashed.

Other important points that emerge from the judgment are as follows:

  1. Mr Justice Swift warns regulators against reaching into professionals’ private lives further than conduct which realistically touches on the professional’s practise of the profession, or the standing of the profession as a whole. To do so will be a breach of Article 8 of the European Convention on Human Rights. “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.”
  2. There is no universal principle of “serious professional misconduct”. That term does not appear in the Handbook. Whether an allegation reaches a sufficient threshold of seriousness and culpability is simply a matter of interpreting the particular provision of the Handbook. There is no separate stage of considering whether a breach amounted to serious professional misconduct.
  3. The SRA’s claim of costs before the Tribunal of £343,957 was alarming. A regulator must conduct its cases with proper regard to the need to permit persons who face regulatory complaints to defend themselves without excessive cost.

This judgment will be interpreted as the High Court having taken the opportunity to prevent the swing of the regulatory pendulum any further. Whilst regulators will undoubtedly continue to act upon behaviour in a professional’s private life, they will need to do so paying careful attention to the warnings which emerge from Mr Beckwith’s case.

The full judgment can be read here.

Lewis MacDonald

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