Conditional Discharges in regulatory proceedings
GOsC v Wray [2020] EWHC 3409 (Admin)
How should regulators deal with professionals convicted of criminal offences, but who receive as a sentence nothing more than a conditional discharge?
Most regulators have provisions in their rules for “conviction cases”. Generally the conviction is considered to be conclusive proof of the facts, and the registrant is not permitted to go behind it and suggest that they were not guilty of the offence. They (and the regulator) are allowed, at the post-facts stage, to adduce evidence of the circumstances of the offence, but only insofar as those are not incompatible with guilt. Those circumstances may then be aggravating or mitigating factors when the regulatory panel is considering misconduct, impairment and their equivalents, and what sanction to impose.
The problem arises because s 14(1) Powers of Criminal Courts (Sentencing) Act 2000 (“the Act”) states that, on expiry of the conditional discharge, the conviction “shall be deemed not to be a conviction for any purpose” apart from some exceptions that have no relevance to professional regulators.
How then should a regulator approach such a case?
In Mr Wray’s case, he pleaded guilty in the Magistrates’ Court to possession of an offensive weapon. He had a troublesome daughter who arrived home one day distraught and apparently intoxicated. Shortly afterwards he took a phone call on her phone from a man who said he had attacked and hurt the daughter, and would do so again. Mr Wray agreed to meet the man, and went to a nearby location with his son. His car was attacked by a gang of young men. When he got out, he took with him a softball bat which had been in the car. It was taken from him and he was assaulted with it.
When he told the police this, they decided to charge him with possession of an offensive weapon. Guilt required firstly that he had no reasonable excuse for having it (but the authorities establish that fear of imminent attack can be a reasonable excuse) and second that he had an intention to use it to injure someone (an intention to scare not being enough to establish guilt). He pleaded guilty on legal advice (despite having two perfectly plausible defences) and a later attempt to vacate his plea on appeal was denied as he was out of time.
The GOsC, alive to s. 14(1) PCCSA, did not charge it as a conviction case, but as an UPC case. However the allegation did not plead the underlying facts as it might have done – e.g. “You (a) had with you in a public place an offensive weapon, (b) you intended to use it to injure someone etc”. Instead, it pleaded that, without reasonable excuse, he had with him in a public place and offensive weapon, contrary to s. 1(1) Prevention of Crime Act 1953 and that he had pleaded guilty to that offence and been conditionally discharged.
Mr Wray admitted those charges, on the basis of his consistent account of events – which included that he had never had an intention to injure, and had only taken the bat for possible self-defence. The Professional Conduct Committee accepted these two contentions, the first of which made him unambiguously innocent of the offence, and the second of which made him almost certainly not guilty as it would be hard to say that he had not anticipated an imminent attack.
From then on, though, they made the mistake of effectively treating it as a conviction case saying, for example, “Nonetheless this did amount to a criminal offence” (which, on the facts as accepted, it didn’t). Their findings are littered with references to the criminal offence, criminal culpability and “committing a criminal act” which would have been proper in a conviction case where the facts are deemed to be true, but not, the High Court held, in a conditional discharge case.
As Mrs Justice Collins Rice pointed out, a UPC case involves identifying a set of facts, or actions by the practitioner, that cross the relevant threshold of seriousness or deplorability. The allegations in this case identified only that he had pleaded guilty to an offence that had the elements cited. But in a UPC case his plea is not determinative of the facts, and in any case the High Court held that pleading it in this way undermined the policy behind s. 14(1) of the Act.
The GOsC argued, among other things, that the conclusion that this was illegitimate would make it prohibitively difficult to bring a UPC charge in conditional discharge cases. The court was not persuaded by this. The Judge made two points [at para 58]:
“It is never necessary to establish all the elements of a criminal offence in a UPC case; the regulator is always free to bring (and prove) whatever facts it considers may add up to UPC”, and second
“if it has to think twice before bringing a case going behind a spent conviction there may be good reason for that”
This could be a very useful case for defence practitioners, especially in the early stages where a regulator is not yet set on pursuing a case. Regulators, for their part, may have to think much more critically about how the case should be pleaded, and whether the case ought to be brought at all.
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