High Court: Tribunal erred in its decision
The suspension handed out by a disciplinary tribunal to a solicitor found guilty of sexual assault in a high-profile case was too lenient, the High Court has ruled in quadrupling its length.
Alastair Main, who was in-house at investment firm Schroders at the time, was suspended for two years by the Solicitors Disciplinary Tribunal (SDT), but this was effectively less than a year as it was backdated to when he lost his job following his conviction.
The suspension was due to expire on 4 January 2019, but the Administrative Court imposed a four-year suspension from the date of the SDT decision, meaning it will now expire on 23 January 2022 – by which time Mr Main’s inclusion in the sex offenders register will have expired too.
Mr Main attracted widespread media coverage for his conviction on 3 January 2017 on one count of racially aggravated assault and one of sexual assault.
He was found to have pulled up a woman’s skirt and slapped her bottom five times at a rowing club Christmas party, called her an “Australian slut” and then poured beer over her.
He was ordered to carry out 200 hours of unpaid work within 12 months, restrained from contacting the woman and placed on the sex offenders register for five years.
Mr Main maintained before the SDT that his actions were not sexually or racially motivated, but said he accepted the court’s ruling.
Sentencing him, the SDT said Mr Main had “departed to a considerable extent” from the complete integrity, probity and trustworthiness expected of a solicitor, “with the consequent harm to the reputation of the profession”.
It said the police had assessed that there was a low risk of a repetition of his misconduct and the tribunal said it did not consider that protection of the public was “an ongoing issue”.
However, public confidence in the profession “demanded no lesser sanction than suspension”.
On its length, the tribunal said Mr Main had “effectively been unable to practise” from 4 January 2017, and that it would be appropriate to suspend him until the expiry of two years from that date.
On appeal, the SRA argued that the SDT had made various errors, including the way it reduced the suspension.
According to a report of the High Court ruling on Lawtel, Lord Justice Holroyde and Mrs Justice McGowan held that instead of focusing on the period of suspension necessary to protect the reputation of the profession and public confidence, the tribunal referred only to the risk of reoffending.
The report said: “It failed to consider if public confidence would be harmed by the solicitor continuing to practise. Had the tribunal focused on that, it could have only reasonably reached one conclusion: the profession’s reputation would be harmed.”
The court said the tribunal had also erred in reducing the suspension by the period that Mr Main had not been practising.
He had not been prevented from practising by order of the court. Rather, he had contested the charges and unsuccessfully appealed against sentence.
“The flaw in the tribunal’s reasoning was exposed by the SRA’s submission that if the date of the criminal trial had been postponed by two years, the suspension would have lapsed by the time it was imposed had the tribunal applied the same logic.”
While the fact that a solicitor did not or could not practise could be a factor in their favour when being sentenced by the SDT, here it was not possible to justify the period of suspension the tribunal had imposed, the court said.
The Lawtel report said: “The criminal orders would expire in January 2022 and a one-year suspension in light of that was inappropriate. Protection of the public and the profession’s reputation required a four-year suspension.”
