Michelle Davis v Solitiors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWHC 3645 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2011 |
| Docket Number | CO/11860/2010 |
[2011] EWHC 3645 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/11860/2010
Mr G Edmondson (a McKenzie friend) appeared on behalf of the Claimant
Mr I Miller (Solicitor Advocate) appeared on behalf of the Defendant
This is an appeal against the decision of a Panel of the Solicitors Regulation Authority which, on 18 October 2010, refused the appellant's enrolment as a solicitor on the basis that it was not satisfied as to her character and suitability to become a solicitor pursuant to Regulation 8(iv) of the Solicitors' Admission Regulations 2009.
The matter has, unfortunately, something of a procedural history. The material background facts are as follows. The appellant herself is now 29 years old. She was, as she herself now accepts, something of a problem child in her teens, and when she was 15 she came before a Youth Court charged with offences of causing criminal damage and using threatening behaviour. She pleaded guilty to those offences and was given a 12-month conditional discharge and ordered to pay some costs.
The appellant decided that the one thing she wanted was to become a solicitor. She had some experience of law in the sense that her father was a Police Inspector. However, she did not entirely give up some of her old ways initially, by which I mean that she did from time to time, as she now recognises, drink more than she should have done. That she has since given up and is now a teetotaller. I will come to the details of what led to that in a moment.
On 24 April 2004, she applied for a Certificate of Enrolment, which under Regulation 4 of the Solicitors' Training Regulations, or their predecessors, is a necessary precursor to undertaking the Legal Practice Course which forms part of the academic stage of training. On that form, known as an ERN1, there were three relevant questions and the answers had to be given to them and it was stated that it should be noted that convictions that were spent under the Rehabilitation of Offenders Act 1984 had to be disclosed by virtue of an exception in an Order under that Act. The questions were as follows:
"(1) Have you ever been convicted of an offence in any court of the UK or elsewhere other than a motoring offence which did not result in disqualification?
(2) Have you ever committed an act of plagiarism or cheating in any form of assessment?
(3) Are there any other factors such as bankruptcy, county court judgement or any other matter relating to your character and suitability to become a solicitor which should be considered?"
The appellant answered no to all those three questions. In addition, on the form there was a note, which indicated that the individual filling in the form must understand that during the period of training he or she had an ongoing obligation to notify The Law Society if convicted of an offence in any court in the UK or elsewhere other than a motoring offence not resulting in disqualification.
The first matter, therefore, is her failure to declare the finding of guilt before the Youth Court in relation to the criminal damage and threatening behaviour.
Her father, as I have said, was a Police Inspector, and the relevance of that is that she was informed that because it was a conditional discharge it was not necessary for her to disclose it as an offence. Technically, that is correct by virtue of the provisions of section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000, which reads as follows:
"Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above."
Thus, as I say, technically this was not a conviction. However, it is clear that it fell within the scope of question number 3, namely a factor relating to her character and suitability to become a solicitor which ought to be have been disclosed. To be fair, she has subsequently recognised, and it was her position before the Panel, that she accepted that it ought to have been disclosed.
However, at the time when she answered the question, she was relying upon the advice from her father and, as it seems to me, she was not to be over-criticised for having done that. I should add that I would be surprised in the extreme if, had she disclosed that matter, it would have been regarded as a bar to her being able to enroll as a trainee solicitor and certainly would not now be regarded of itself as a bar to her being admitted to be a solicitor.
That is the first matter which is, to some extent, relied on against her. Unfortunately, as I say, she had not given up altogether her former way of life, in that she clearly from time to time did drink more than she should, because in November 2005, she was charged with, and pleaded guilty to, an offences of driving with excess alcohol in her body. There was some issue before the Panel as to the precise extent by which she was over the limit. It was said to be 103, as opposed to the limit, which is about a third of that. In any event, the penalty which was imposed was a substantial fine and disqualification for 24 months. But that would be reduced to 21 months if she went through the rehabilitation course and paid the fine promptly. She did that, and it was not until May 2007 that she completed the rehabilitation course.
She did not disclose the fact of the conviction in 2005. She should have done because, clearly, it was an offence other than a motoring offence not resulting in disqualification. Her excuse was that she believed at the time that it was not a disclosable offence. She has since realised that it was one which fell within the terms of the requirements but she had not recalled the details of what was on the form that she had filled in when she applied in 2004.
However, when she had been through the rehabilitation course it was made clear to her that it was a criminal offence and at that stage she did realise that it fell within a matter that she ought to disclose. This was not because she was aware still of the ongoing obligation but because she knew then that she had been mistaken in her view that it was not to be regarded as a criminal offence. I should say that the Panel accepted that she did have a reasonable excuse for not disclosing the matter until May 2011.
The other effect of the rehabilitation course was to change her attitude completely to drink and she says —and it has been confirmed from other sources and I have no reason to doubt and nor did the Panel —that since, she has not drunk alcohol and certainly has not driven a motor car having drunk alcohol.
Her excuse for doing what she did in 2005 was that she had been drinking with friends but that she had slept for a time and had believed that when she woke up she would not be over the limit and would be fit to drive. She says that she was stopped because she took her eyes off the road in order to deal with a cassette or a DVD in the car and swerved as a result and, unfortunately for her, there was a police car observing her manoeuvres. Whether that is right or not perhaps is not particularly material, but certainly there was no accident involved and it is not said that there was any situation which led to her being stopped which was a particular danger, other than the fact that she was driving when she had far more alcohol in her body than she should have done. That, of course, in itself, one must recognise, is a real danger.
Be that as it may, when she was aware of this she sought advice from the solicitor who was her trainer. He in turn sought advice from a person whom the firm used as an adviser on matters such as this. Unfortunately, there was a misunderstanding because what was sent back, with an opinion that there was not any requirement to disclose, was a form which dealt with a different matter. It dealt with matters involving legal aid. That should have been spotted, as I think he recognises, by Mr Edmondson, her supervisor, but was not, and the appellant was told that she did not need to disclose at that stage. She always recognised, and it was always accepted, that she would disclose when she eventually made the application to allow her to be enrolled as a solicitor. Accordingly, there was no question of any dishonesty involved in what she did. It was accepted before the Panel that it was negligent, indeed grossly negligent was the way it was put. However, whether that adverb adds a great deal in the circumstances, I am not sure.
I have said this had a slightly unfortunate history. The original decision by a single adjudicator was based on a finding that she had been dishonest. That decision, which was made on 6 August 2009, was, in my view —and indeed, to be fair, in the view of the Panel which eventually heard the matter —clearly insupportable. However, there was an appeal to the Panel but that Panel decided that she was not dishonest but found against her on a basis which was not put to her and with which she had had no opportunity to deal. I do not need, I think, to go into the details because it was in due course accepted when an appeal was made to this court that the matter would have to be reconsidered and so there was a consent order and it was...
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