"Integrity" in professional discipline cases - Beckwith.

Crucible's Professional Discipline team considers the recent case of Beckwith: Beckwith v Solicitors Regulation Authority [2020] 11 WLUK 421

Introduction

The recent trend for professional regulators to extend the scope of "lack of integrity" charges, and subsequently their reach into the private lives of the professionals they regulate, has been somewhat curtailed in this recent High Court judgment.

At the material time, Ryan Beckwith was a Partner with the law firm Freshfields Bruckhaus Deringer. It was accepted that Mr Beckwith had a "sexual encounter" with Person A after a drinks party. Mr Beckwith was Person A's supervising partner and her appraisal partner. It was further accepted that Mr Beckwith was a person of seniority and/or authority over Person A. It was found that Person A was heavily intoxicated at the time, though the panel did not consider that Person A to have been "vulnerable". The Tribunal rejected the allegation that Mr Beckwith had acted in abuse of his position of seniority or authority but found instead that by engaging in sexual activity with Person A he had acted "inappropriately". The Tribunal concluded that Mr Beckwith's actions were in breach of two SRA Principles, as set out in the Handbook, namely Principle 2, the obligation to act with integrity, and Principle 6, the requirement to behave in a way that maintains public trust in solicitors and in the provision of legal services. The Tribunal imposed a sanction of a fine of £35,000 with an order for costs of £200,000. Mr Beckwith appealed the decision to the High Court.

The judgment

The judgment begins with an analysis of "misconduct" and makes clear [see paragraphs 14-25] that the Tribunal did not err in not making a free-standing judgment that the conduct occurred had amounted to professional misconduct. The Tribunal was tasked with applying the relevant rules and following the statutory scheme, which did not require a specific finding on the point.

Having reviewed the previous authorities considering the concept of "integrity", the Court drew three points of principle [emphasis added]:

"30. The first is that in the context of the regulation of a profession there is an association between the notion of having integrity and adherence to the ethical standards of the profession. This is consistent with the ordinary meaning of the word, namely adherence to moral and ethical principles. The second is that on matters touching on their professional standing there is an expectation that professionals may be held to a higher standard than those that would apply to those outside the profession. The third is that a regulatory obligation to act with integrity "does not require professional people to be paragons of virtue"."

The judgment continued [emphasis added]:

"39... Our analysis is premised on the need to define the content of the obligation to act with integrity, which might otherwise be an obligation at large, by reference to the standards set out in the Handbook. Confining the obligation in this way preserves the legitimacy of the regulatory process by maintaining the necessary and direct connection between the obligation to act with integrity and rules made in exercise of the power at section 31 of the [Solicitors Act 1974]. Yet the approach we have taken in this case is not any form of permission to expand the scope of the obligation to act with integrity simply by making rules that extend ever further into personal life. Rules made in exercise of the power at section 31 of the 1974 Act ... cannot extend beyond what is necessary to regulate professional conduct and fitness to practise and maintain discipline within the profession."

The High Court found no breach of Principle 2 and, on the same analysis, that the conduct found proved was not capable of amounting to a breach of Principle 6.

A final note

In a final note, which may be considered to be a warning to Professional Regulators, the Court stated [emphasis added]:

"54. There can be no hard and fast rule either that regulation under the Handbook may never be directed to the regulated person's private life, or that any/every aspect of her private life is liable to scrutiny. But Principle 2 or Principle 6 may reach into private life only when conduct that is part of a person's private life realistically touches on her practise of the profession (Principle 2) or the standing of the profession (Principle 6). Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook. In this way, the required fair balance is properly struck between the right to respect to private life and the public interest in the regulation of the solicitor's profession. Regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator's remit."

Having described the SRA's costs as "alarming" the Court noted more generally that the SRA "must conduct its cases with proper regard to the need to permit persons who face regulatory complaints to defend themselves without excessive cost. This is part of any regulator's responsibilities in the public interest." [paragraph 58]. The costs order was set aside.

Charges alleging lack of integrity therefore must be clearly founded on or derived from the rules and statutory framework of fitness to practise, in order for regulators to properly exercise jurisdiction over the private acts of professional persons. To do otherwise risks encroaching upon a Registrant's rights under Article 8 of the European Convention on Human Rights.