Beckwith: Successful appeal
The High Court has overturned the decision that former Freshfields partner Ryan Beckwith breached the SRA code of conduct by having drunken sex with a junior lawyer at the firm.
Though his conduct was “inappropriate”, the court identified as crucial the fact the Solicitors Disciplinary Tribunal (SDT) did not find the solicitor’s conduct to be an abuse of a position of seniority or authority.
As a result, Dame Victoria Sharp, president of the Queen’s Bench Division, and Mr Justice Swift ruled [1] that he did not act contrary to the SRA principles that required him to act with integrity (principle 2) and behaving in a way that maintained the trust the public placed in him and in the provision of legal services (principle 6).
The fine of £35,000 imposed [2] last year by the SDT was quashed, as was the £200,000 costs order made in favour of the Solicitors Regulation Authority (SRA).
The SDT found that Mr Beckwith and ‘Person A’ had been out at work drinks and took an Uber to her home in west London.
Person A claimed he tricked his way into her flat by claiming he needed to use the toilet and the next thing she could remember was Mr Beckwith on her bed naked from the waist down.
He claimed the night they spent together at her flat was “a consensual sexual encounter between two adults”.
While making no finding on the question of consent, the SDT said Mr Beckwith knew or ought to have known that Person A was heavily intoxicated to the extent that she was vulnerable and/or her judgment and decision-making ability was impaired, and that his conduct was inappropriate.
On appeal by Mr Beckwith, the court found that “the critical matter” was the allegation that his conduct amounted to an abuse of his position of seniority or authority, which the SDT did not uphold.
The courts have recognised that integrity is a more nebulous concept than honesty. Here, the court said: “The requirement to act with integrity must comprise identifiable standards. There is no free-standing legal notion of integrity in the manner of the received standard of dishonesty; no off-the-shelf standard that can be readily known by the profession and predictably applied by the tribunal.
“In these circumstances, the standard of conduct required by the obligation to act with integrity must be drawn from and informed by appropriate construction of the contents of the [SRA] Handbook, because that is the legally recognised source for regulation of the profession.”
This exercise was best done case by case, it said. “Any attempt to formulate a comprehensive list of what is prohibited and what is permitted detached from the circumstances of a specific case could only provide hostage to fortune.” This approach also applied to principle 6.
Here, the relevant provision of the 2011 code of conduct (which applied at the time) in relation to the principle 2 allegation was the obligation, whether acting in a professional or personal capacity, not to take unfair advantage of others.
“The tribunal’s finding that the appellant had not acted in abuse of his position of seniority or authority puts the present case outside that requirement. What the appellant did was, as the tribunal concluded, inappropriate.
“But it was not conduct which on a proper reading of the 2011 principles was capable of being characterised as showing a lack of integrity.”
The court added that, given its detailed findings, the SDT was “clearly right” to conclude that no abuse of authority had occurred.
On principle 6, the court accepted the SRA’s argument that the relevant standard derived from the handbook was that the public would have a legitimate concern and expectation that junior staff should be treated with respect.
Again, the SDT’s finding on the abuse of position could not support its conclusion: “What the appellant did affected his own reputation; but there is a qualitative distinction between conduct of that order and conduct that affects either his own reputation as a provider of legal services or the reputation of his profession.”
In relation to both principles, the court noted that the SDT did not explain why it reached its conclusions.
Mr Beckwith also argued that the findings were in breach of the right to a private life guaranteed by article 8 of the European Convention on Human Rights, raising the question of how far regulation can extend into the actions of a solicitor outside of work.
“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,” the court said.
“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.”
The SDT cut the SRA’s costs from £344,000 to £200,000, an unusually large sum by the standards of tribunal proceedings.
The court reversed the order. The SDT had dismissed one allegation about an earlier incident with Person A and the other allegation succeeded only on a factual basis largely consistent with Mr Beckwith’s evidence.
“We can see no basis on which the amount claimed by the SRA could provide any guide at all to what it would have been reasonable and proportionate for the appellant to pay, even if the SRA had succeeded on its case in its entirety. Taking matters in the round, the tribunal’s reasons for the costs order made are not coherent.”
The court stressed that since the SRA was not usually required to pay costs when prosecutions fail – on the basis it was acting in the public interest – “it 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”.
The court said the SRA’s claimed costs were “alarming” – the facts were not complex and the disputes over them were “relatively straightforward”.
However, it ruled that the evidence provided was “insufficient” to order the SRA to pay Mr Beckwith’s costs of the SDT proceedings.