Solicitors Regulation Authority v Alastair Main
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan,Lord Justice Holroyde |
| Judgment Date | 10 October 2018 |
| Neutral Citation | [2018] EWHC 3666 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/721/2018 |
| Date | 10 October 2018 |
[2018] EWHC 3666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Holroyde
Mrs Justice McGowan
CO/721/2018
Miss C. Carptenter (of Solicitors Regulation Authority) appeared on behalf of the Appellant.
Mr P. Cadman (instructed by Russell Cooke LLP) appeared on behalf of the Respondent.
On 3 January 2017 the respondent, Mr Alastair Main, was convicted in a magistrates' court of offences of sexual assault contrary to s.3 of the Sexual Offences Act 2003, and racially aggravated assault by beating contrary to s.29 of the Crime and Disorder Act 1998. Sentencing was adjourned until 26 January 2017. On that date, the respondent was made subject to a community order with a requirement that he complete 200 hours of unpaid work within 12 months. He was made subject to a restraining order pursuant to s.5 of the Protection From Harassment Act 1997 to prevent him from having contact with the victim of his offences.
As a consequence of his conviction of sexual assault and the sentence imposed, he was also required to comply with the notification requirements under the Sexual Offences Act 2003, commonly referred to as being on the sex offenders register, for a period of five years.
In the exercise of statutory powers, and with the approval of the Legal Services Board, the Solicitors Regulation Authority Board has made the SRA Principles 2011. The Solicitors Regulation Authority (“SRA”) brought disciplinary proceedings against the respondent, alleging breaches of three of those Principles. The disciplinary proceedings culminated in a hearing before a panel of the Solicitors Disciplinary Tribunal (“SDT”) on 23 January 2018. The respondent admitted that he had breached two of the mandatory Principles: Principle 2, “you must act with integrity”, and Principle 6, “you must behave in a way that maintains the trust the public places in you and in the provision of legal services”. The third allegation, that he had breached Principle 1, was disputed and was found by the Tribunal not to have been proved.
In their decision, for which detailed written reasons were given on 20 January 2018, the Tribunal ordered that the respondent “be suspended from practice as a solicitor for the period up to and including 4 January 2019, to commence on 23 January 2018”. The Tribunal further made an order for costs against the respondent.
The SRA now appeals against that decision as to sanction, contending that it was unduly lenient and was clearly inappropriate. The grounds of appeal contend that the Tribunal made one or more of three errors of principle, in that: (1) they wrongly concluded that there was no need to consider the protection of the public; (2) they failed to ask themselves an essential question, namely, “Will it harm the reputation of the profession and the trust the public places in the provision of legal services, if a person who has recent convictions for sexual assault and racially aggravated battery and who is on the sex offenders register and is subject to a restraining order as a result, is allowed to continue to practice?”; (3) although they took the view that the appropriate sanction in order to protect the reputation of the profession was a 2-year suspension, they wrongly decided that since the respondent had not worked as a solicitor since his conviction some 12-and-a-half months previously, they would deduct that period and only order that he be suspended for just over 11 months.
The Facts
It is sufficient for present purposes to summarise briefly the circumstances which gave rise to the criminal convictions of the respondent. On 16 December 2015, he attended the Christmas dinner of a rowing club of which he was a member. Also present was the complainant in the criminal proceedings who, as I understand it, was a former girlfriend of the respondent. The respondent has admitted that he became drunk. He appears to have become angry with the complainant when she refused his request for a hug. He poured the contents of his glass of beer over her. He followed her to the ladies' lavatory, where he more than once called her an “Aussie slut” and asked if she was wearing any knickers. He lifted her skirt and smacked her bottom repeatedly. At trial, he admitted that he had been drunk and angry, admitted that he had called the complainant a slut and admitted that he had slapped her bottom, but denied that he had referred to her as “Aussie” and denied that there was any sexual aspect to his actions. The District Judge (Magistrates' Courts) before whom the trial was heard found both charges proved.
These events attracted the attention of the tabloid press and the name of the respondent's employer was published in at least one newspaper. Following his conviction, the respondent was summarily dismissed from his employment as a solicitor and had not found other work as a solicitor by the time of the proceedings before the Tribunal. As a professional man with no previous convictions, he clearly suffered a heavy fall from grace and brought upon himself serious consequences in addition to the penalty imposed by the criminal court.
In relation to the sentence of the criminal court, it should be noted that an offender becomes subject to the notification requirements under Part 2 of the Sexual Offences Act 2003 upon conviction of an offence listed in Schedule 3 to that Act. In the case of an adult offender whose victim is also an adult, an offence under s.3 of the Act is only included if the offender is sentenced to a term of imprisonment, detained in a hospital or made the subject of a community order of at least 12 months. The notification requirements applied to this respondent because his community order was for a period of 12 months. In such circumstances, s.82 of the Act prescribes that the notification requirements apply for a period of 5 years from the date of conviction.
The respondent appealed against his sentence to the Crown Court, with the aim of persuading that court to reduce the term of the community order, which would have the effect of taking the offence outside the notification requirements. His appeal was, however, dismissed.
The Tribunal's Decision
At the hearing on 23 January 2018, the Tribunal considered the appropriate sanction for the two breaches of the Principles which the respondent had admitted. Detailed submissions were made to the tribunal on his behalf. Mr Cadman, then as now appearing for the respondent, referred amongst other things to the fact that the respondent had completed his unpaid work requirement within about four months from the date of the sentence. He relied on a number of supportive references from people who knew the respondent well and who described his offending as wholly out of character. He pointed to the fact that the police had assessed the respondent as a low risk of reoffending.
The Tribunal specifically invited submissions “in respect of the compatibility of the respondent practicing as a member of the profession whilst he was on the sex offenders register”. In this regard, Mr Cadman submitted that the period of five years was specified by Parliament, having regard to the nature of the offence and the sentence imposed, and did not indicate that the District Judge had specifically viewed the respondent as presenting a risk for the next five years. He pointed to the fact that the District Judge had made a restraining order relating specifically to the complainant but had not made a sexual harm prevention order, which could have been made if the court was satisfied that it was necessary to protect the public generally.
Counsel then appearing for the appellant referred to the decision in Council for the Regulation of Healthcare Professionals v General Dental Council & Fleischmann [2005] EWHC 87 (Admin) as authority for the proposition that a professional person should not normally be allowed to practise unrestricted whilst still serving a sentence.
At paragraph 23 of their written reasons, the Tribunal indicated that they did not consider that protection of the general public was an ongoing issue. They continued as follows:
“In terms of maintaining the reputation of the profession, the Tribunal felt that this matter was far too serious for either no order or a reprimand and was also too serious for a fine. The conduct merited some interference with the respondent's ability to practise. Public confidence in the legal profession demanded no lesser sanction...
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Jon Frensham v The Financial Conduct Authority [2021] UKUT 0222 (TCC)
...private life did affect the maintenance of public confidence and public trust in the solicitors’ profession is SRA v Alistair Main [2018] EWHC 3666 (Admin). 60. In that case, the High Court quashed a one year suspension imposed by the SDT and substituted a four year period where a solicitor......