When is strike-off all but automatic?
SRA v Mohammed Dar [2019] EWHC 2831
There has long been an issue with some regulators wanting to establish something of a tariff for certain disciplinary offences, particularly dishonesty. Many defence practitioners will remember the overuse of Parkinson v NMC [2010] EWHC 1898 (Admin) where a rule of law seemed to be created from an (obiter) reference to nurses who fail to turn up or apologise sufficiently forfeiting “the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure”.
The idea that nurses who did turn up had only a slim chance of avoiding erasure was never an accurate reflection of actual panel decisions, even where the nurse denied dishonesty and it was proved. The tribunals overseeing some other professions, for example doctors, were perhaps a bit less forgiving, but strike-off was still far from universal. Since then the High Court has emphasised that dishonesty, like all other misconduct, comes in various guises more or less serious (see for example R (Hassan) v GOC [2013] EWHC 1887).
In the case of Mohammed Dar, the SRA appealed against a decision of the Solicitors’ Disciplinary Tribunal to impose a suspended suspension, a restrictive order and a fine on the solicitor, who had acted recklessly and with a want of integrity with regard to a property deal. While the SRA had a number of detailed objections to the way the sanction decision was arrived at, they also argued that the sanction was in any case “clearly inappropriate” and that he should have been struck off, or at least suspended with immediate effect.
In February 2017, Mohammed Dar was instructed in the sale of an Islamic community centre which appeared to be held on a charitable trust. Despite numerous warning signs that the transaction was “dubious” he failed to investigate and simply continued with the deal. When he was presented with incontrovertible evidence that the instructions were a fraud, he unpicked the deal and no actual loss was incurred by the charity which owned the building. The SRA laid allegations against him which included recklessness and a lack of integrity (which he denied), but not dishonesty.
The Tribunal rejected Mr Dar’s evidence that the features of the deal which led to it being described as dubious were not objectively unusual, and further rejected his evidence that at the time he had not believed those features to be unusual. He was assessed as being “highly culpable” in the matters found proved, and the lack of integrity and recklessness he displayed fell “far below” the standard of conduct expected. His actions were described as “gravely detrimental” to the reputation of the legal profession.
In its overriding argument that the sanction was “clearly inappropriate” the SRA relied on the well-known comments in Bolton v The Law Society [1994] 1 WLR 512 which emphasise the severity of the sanction that will follow a failure of integrity, and a passage in SRA v Emana [2013] EWHC 2130 (Admin) [at 26] which says “in cases where there has been a lapse of standards of integrity, probity and trustworthiness a solicitor should expect to be struck off” and that the range of those who would be struck off for lack of integrity is “wide”. On behalf of Mr Dar it was argued that the sanction was within the ambit of reasonable decisions that the Tribunal could have made.
Lord Justice Hickinbottom and Mrs Justice May, in a joint judgment, ruled that while the combination of the sanctions was “unusual” it was not wrong. At paragraph 92 they state: “A finding of serious misconduct does not require striking off or an immediate suspension, although no doubt that will be appropriate in most cases”. They deferred to the Tribunal as being in the “best position to assess the proper level of his culpability” and the measures required to protect the public and the profession.
An interesting footnote – the SRA did not seek to support its case by arguing that the Tribunal had failed to take into account that it had found that Mr Dar had lied on oath during his evidence. This argument, which elevates the seriousness of any case, let alone one where a professional’s integrity is already called into question, is often used to justify the ultimate penalty.
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