Drugs: Solicitors risked criminal conviction
The High Court has ordered two solicitors acting as deputies for a man in his 20s not to pay off a £17,000 debt he owes drug dealers.
The president of the Family Division, Sir Andrew McFarlane, said the deputies were in “an acutely difficult professional circumstance” and, having brought the matter to court, “deserve the protection of the court in this potentially sensitive matter by the court taking a relevant decision”.
Having found that the protected party (P) lacked capacity to decide whether to pay off the debt, he ordered that the deputies should not give him the money.
The unnamed solicitors are property and affairs deputies for P, who suffered very serious injuries in a road traffic accident when he was just under three years old, although he now lives a “largely autonomous life”.
But a year ago, a police raid seized money from premises he owned, as well as a “substantial quantity” of class A and class B drugs. “It is accepted that he was in part responsible for that consignment of drugs.”
About six weeks ago, P approached one of the deputies and said the original dealers were seeking £17,000 for his “share” of the drugs that had been seized.
“P does not have the financial resources to pay anything like that sum, although apparently he has made some contributions towards it.
“P is very frightened. He fears continued pressure from this organised crime gang and it is clear to him that they require paying and he is clear that he needs to and wants to pay them the sum that is due.”
The judge recounted how the deputies commissioned opinions from a criminal law KC and junior, who said that, if they were to pay the money for P, they would be potentially liable for a number of criminal offences, in particular under section 328 of the Proceeds of Crime Act 2002 and of conspiracy to commit that crime.
Further, an opinion by Greg Treverton-Jones KC, a specialist in solicitors’ regulation, said “the responsibilities as solicitors do not relate solely to acting as solicitors in a narrow sense but would encompass their actions as deputies”.
He made “the obvious point that solicitors cannot accept instructions that involve them in criminality” and so were “simply not professionally in a position to make the payments if they are going to satisfy the drug debt”.
McFarlane accepted that, if P had capacity – as he believed he did – he was entitled to ask for the money and “the deputies would not be in the position of placing themselves in jeopardy of criminal prosecution were they to abide by his instructions; indeed, they would have to abide by his instructions”.
But a detailed report from a consultant clinical psychologist concluded that P did not have capacity.
While usually the court would go on to decide whether or not the particular step should be taken, “there is no prospect of a court sanctioning a payment of this nature”.
But rather than dismissing the application – as the Official Solicitor had urged – McFarlane J said he should make a decision that the deputies not pay the money to P to satisfy the debt.
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