November 2018 saw the appeal of the SRA v James, Macgregor and Taylor ( EWHC 3058 (Admin)) three appeals heard together and brought by the SRA on the grounds that the sanctions in each case, suspended suspension orders, were not sufficient in cases of proven dishonesty.
The original determinations from the SDT led to a sigh of relief amongst the profession.
However, the case law it seems was against them. The case of Bolton v Law Society  1 WLR 512 established (as said by Sir Thomas Bingham):
“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings or penalties. In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced by the solicitor, ordered that he be struck off the role of solicitors."
In each of the cases of James, McGregor and Taylor the practitioners were said to be suffering from some kind of mental disorder which the SDT had found amounted to “exceptional circumstances” leading them not to impose the sanction of striking the solicitor from the Roll but to impose a suspended suspension order coupled with restrictions on their practice. The SRA then appealed these sentences as the sanction imposed was thought to be unduly lenient.
The outcome of the appeal was that the High Court held that each of the solicitors should be struck from the Roll. This decision is broadly consistent with the case law that has come before and cannot therefore have been a surprise to any of the respondents. However, in general the profession has reacted with horror to the findings, not in any way to diminish the seriousness of the allegations facing the individuals, but because of the similarly high criticism of the unworkable conditions these individuals were said to be facing.
The decision of the High Court has meant that there is now a fear of rigidity in how dishonesty will be assessed by the panel of the SDT in the future. Despite serious distinguishing features such as in the case of James where it was shown that Ms James was suffering from a mental disorder and worked in conditions described as ‘abominable’, the High Court has effectively ruled that dishonesty even in cases of strong mitigating circumstances, on any level means erasure except in those ‘moment of madness’ cases.
Faux LJ gave conclusions in respect of the presence of mental health conditions stating:
“…the presence of such mental health issues cannot, without more, amount to such "exceptional circumstances”...”
In this respect one wonders how and when personal mitigation should be considered by the relevant tribunals in cases of proven dishonesty and whether or not this is compatible with the reasonable person’s view of dishonesty and professional regulation.
A consideration for those of us who prosecute and defend in other regulators such as GMC, NMC and HCPC cases is how will this decision affect those panels?
Although Faux LJ notes that “…some caution must be exercised in seeking to draw parallels between the solicitors' cases and the medical cases…” it seems to me that such a restriction that cannot be imposed. Case law from all regulators is routinely considered by these regulatory panels and so what has followed from one appeal will invariably apply in another.
Faux LJ seeks to say that there is a difference because of the term exceptional circumstances and this is the test that the SDT must be satisfied of in order to impose a lesser sanction than striking off in dishonesty cases. However I would again state that guidance for dishonesty cases by and large is drawn from a wealth of case law and in particular the case of Bolton above and the case referred to Faux LJ by Counsel for the respondents, Lusinga v NMC  EWHC 1458 (Admin) where it was submitted that there are degrees of dishonesty and culpability for it which Faux LJ stated “is obviously correct” [para 50].
In Lusinga Kerr J stated [paras 103-104] in respect of sanction and dishonesty:
“…the possibility that dishonest conduct can take various forms; some criminal, some not; some destroying trust instantly, others merely undermining it to a greater or less extent.
The guidance, in my respectful opinion, needs to be more nuanced in that respect. It should not lump the thief and the fraudster together with the mere contract breaker.”
There have been many cases, where the decision of the panel after hearing from the registrant in terms of their insight, remorse and remediation has been to impose far less severe sanctions. This discretion can only be right on behalf of panels who assess insight as it appears on the day of the hearing and who are best place to see and hear the evidence of the registrant.
The High Court is generally loathed to get involved in findings of fact and it seems to me that no regulatory panel would issue a determination other than a striking off order in cases of dishonesty without heavy consideration of the individual factors before them, whether you refer to them as mitigation or exceptional circumstances.
The public must be confident that the regulator is upholding proper standards within the profession with its decisions. However, it is true to say that the public and the regulated professional must also be confident that the regulator is able to take a nuanced approach in those very few cases where the conditions could be said to lead to the actions.