Re the Solicitors Act 1974, No 13 of 2008
| Jurisdiction | England & Wales |
| Judge | the Master of the Rolls,The Master of the Rolls,the master of the Rolls |
| Judgment Date | 10 July 2008 |
| Neutral Citation | [2008] EWCA Civ 811 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 2008 |
| Docket Number | Case Number (No: 13 of 2008) |
[2008] EWCA Civ 811
The Master of the Rolls
Case Number (No: 13 of 2008)
In The Matter of the Solicitors Act 1974
And In the Matter of the Master Of the Rolls
(appeals And Applications) Regulations 2001
L appeared in person.
Mr Iain Miller of Bevan Brittan represented the Law Society
Introduction
This application raises the question whether or not an appeal should be heard in private. It arises in the context of a substantive appeal brought under the Master of the Rolls (Appeals and Applications) Regulations 2001 (the 2001 Regulations). The substantive appeal arises out of an appeal from a decision of the Law Society to revoke student membership of the Society on the grounds that the student member does not have the necessary character or suitability to be a student member or ultimately to be permitted admission to the Solicitors' roll. The appellant had originally been admitted as a student member of the Law Society in 2002, following a consideration by a Law Society Adjudicator of his background including his previous convictions. The Law Society revisited its decision in 2007 following a number of incidents which involved the appellant but did not relate to any criminality.
The appellant submits that the substantive appeal be heard in private on the ground that it involves consideration of a number of criminal convictions which are now classified as spent under the terms of the Rehabilitation of Offenders Act 1974. I directed the present application to be heard in private because to have done otherwise would have defeated the object of the hearing. It is also unnecessary for present purposes to identify either the appellant or his past convictions. This judgment will be made public in this anonymised form.
Rule 10 of the 2001 Regulations provides the general rule which applies to proceedings brought under those Regulations. Rule 10 states that the hearing shall be in public unless:
“(10) …
(a) all parties to the application or appeal agree that all or part of the hearing shall be in private and the Master of the Rolls considers that this will not be contrary to the interests of justice; or
(b) the Master of the Rolls considers that there are exceptional circumstances which justify hearing all or part of the application or appeal in private.”
The Law Society does not consent to the substantive appeal in this case being heard in private. It is therefore for the appellant to demonstrate that there are exceptional circumstances which would justify the appeal or aspects of it being heard in private.
Submissions
The appellant has made a number of submissions both in writing submitted before and after the hearing of this application and orally at the hearing itself. He relies in particular on written submissions set out in a letter dated 20 April 2008. The main point on which he relies in support of his application is that the convictions which give rise to the substantive appeal are now all long since spent. They are thus matters that are ordinarily subject to the Rehabilitation of Offenders Act 1974 (the 1974 Act). It would, he submits, be a great source of embarrassment if details as to what happened in the 1980s should now come to light given his attempts to put the past behind him. Moreover it would, it is submitted, deter him from pursuing his substantive appeal because, unless it is heard in private, matters which are subject to the 1974 Act would now enter the public domain and prevent him from bringing any potential future defamation action should those matters be revealed to the press. He further submits that matters disclosed to the Law Society are not such as can be relied upon in civil proceedings.
He further submits that it would be unjust to allow details of his offending to enter the public domain because the Law Society initially granted him student membership in 2002. It would be particularly unjust in his case because he has a certain public profile through work he has carried out for the Home Office and through making television documentaries. Publication of his offending history could jeopardise this work as well as the work he carries out for his employer. Such public disclosure would, it is also submitted, cause himself, his family and those with whom he works extreme distress.
The appellant also relies on CPR 39.2(c) and on Article 8 of the European Convention on Human Rights (ECHR). As to the latter, he submits that the Law Society infringed Article 8 when it required him, contrary to its general policy, to obtain copies of his confidential police records using his own subject access rights under section 7 of the Data Protection Act 1998. The Law Society's general policy is to require Criminal Records Bureau checks to ascertain whether an applicant for student membership has a history of offending.
He also relies on Article 6 of the ECHR and contends that a public hearing would result in the loss of his livelihood. He further submits that the documents were confidential documents, a point he submits was emphasised by the Law Society's own guidance. He submits that that guidance guaranteed confidentiality during the admissions process which according to the guidance includes the appeals process and that it applies to the present appeal because the Master of the Rolls sits as a Law Society, or now as a Solicitors Regulation Authority (SRA), Adjudicator and is subject to their policies and guidance.
The Appellant also relies upon a number of other documents in support of this application. In those documents he refers, in addition to the submissions already noted, to the powers contained in section 11 of the Contempt of Court Act 1981 and section 8 (1) of the Magistrates Court Act 1980 to impose reporting restrictions on various hearings and to anonymise proceedings.
The Law Society's stance can be put more succinctly. It submits that the general common law principle is that hearings should be in public, although this is subject to exceptions, for which see Scott v Scott [1913] AC 417 and R (Pelling) v Bow County Court (CO 4774/1999) (2000 unreported). Further general guidance as to when exceptions can be made to the general rule is, it is submitted to be found in both CPR 39.2 and Article 6 (1) ECHR.
As to the 1974 Act the Law Society submits that it does not protect the appellant because applications for admission as a solicitor are excluded due to the effect of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the 1975 Order). That Order ensures that, so far as matters outside the admissions process and these proceedings are concerned the appellant is still protected by the terms of the 1974 Act.
The Law Society also submits that the thrust of the appellant's submissions is that the 1974 Act in some way renders his spent convictions confidential. This, it is submitted is to give too wide an effect to the protection afforded by the 1974 Act. It submits that it is a fundamental aspect of confidential information that is not and has never been in the public domain. This cannot apply to prior convictions; especially where, as in this case, at least one of them has been reported in the press. It is submitted that it is for this reason that the 1974 Act does not create a right under Article 8 of the ECHR: see R (Pearson) v DVLA [2002] EWHC 2482 (Admin).
Finally, the Law Society submits that the appellant's submissions relate to his privacy and a desire not publicly to draw attention to his convictions. It is submitted that these reasons do not amount to exceptional circumstances justifying holding the hearing in private. It submits in the alternative that if there is any force in his submissions they can be met by anonymising the judgment.
Discussion
The fundamental issue arising for decision is whether appellate proceedings arising from a decision by the Law Society, or the SRA, concerning admission as a student member of the Law Society ought to be held in private where the individual seeking admission has spent criminal convictions. Does the existence of spent convictions amount to exceptional circumstances for the purposes of these proceedings? More generally, does it amount to exceptional circumstances for the purposes of Rule 10 of the 2001 Regulations, which govern these and other appellate proceedings referable to the Master of the Rolls concerning student members of the Law Society, solicitors and former solicitors?
I consider first the 1974 Act. The purpose of the Act is, as it is described in volume 11(4), para 2113 of Halsbury's Laws, 'to place a rehabilitated person in the position that he would have occupied had he not committed the particular offence.' This is achieved, inter alia, through section 4(2) of the 1974 Act which provides that, subject to section 4(4):
“… where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him ore to any other person otherwise than in proceedings before a judicial authority –
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.”
Section 4(4) of the 1974 Act enables the Lord Chancellor, is to exclude certain professions and areas of employment...
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