Drink-drive solicitor who refused breath test did not lack integrity


Police: Car was wandering about the lanes

A solicitor arrested for failing to provide a sample of his breath after being pulled over for drink-driving did not act with a lack of integrity, the Solicitors Disciplinary Tribunal (SDT) has ruled.

Dismissing an application by the Solicitors Regulation Authority (SRA) for £6,000 costs against James Rafferty, the SDT said it was “not unusual for an offender to disagree with some parts of the case against them”.

The tribunal heard that Mr Rafferty, admitted in 2010 and a solicitor at City firm Baker McKenzie, was pulled over in May 2023, with the police saying the speed of his car varied between 65mph and 90mph on the A19 in Hartlepool, while it was “wandering about the lanes and at one point almost collided with a bus”.

The solicitor was arrested and charged for failing to provide a sample of his breath. He informed the SRA two days later.

Mr Rafferty pleaded guilty to the offence of failing to provide a breath specimen. He was fined £3,800 and banned from driving for 17 months by Teeside Magistrates’ Court.

Mr Rafferty admitted failing to act in a way that upheld the rule of law and the proper administration of justice and to uphold public trust and confidence. He denied acting with a lack of integrity.

The SDT said the SRA’s case had been put on the basis that Mr Rafferty had “refused to co-operate with and obstructed the police during and shortly after his offending”.

There was “particular focus” on his “repeated refusals” to provide a specimen of breath and comments that were recorded by the police during questioning.

Mr Rafferty’s communications with the SRA were “said to have demonstrated a lack of insight” in that he did not “completely accept the police officers’ observations regarding the circumstances of the offence”.

The tribunal rejected an application by the SRA to admit the police log of the incident as evidence, on the grounds that “it was not clear from the material presented who the individuals referenced within it were” and it was “heavily redacted”.

It had been “persuasively argued” by counsel for Mr Rafferty that the document would not have been admissible in the criminal proceedings for that reason.

The SDT went on: “The tribunal noted that it was not unusual for an offender to disagree with some aspects of the case against them and this did not necessarily require a basis of plea or signify any lack of insight as a result.”

Mr Rafferty had “entered a guilty plea at the first opportunity and acted with complete transparency with his regulator throughout”. SRA principle 5 (acting with integrity) was not engaged, the tribunal said.

His counsel, Greg Treverton-Jones KC, argued that alleging a lack of integrity was “inconsistent with recent SRA in-house decisions on more serious facts”; it was, and should have been treated by the SRA as, a routine regulatory matter leading to a rebuke or a modest fine.

The SDT recorded: “[He] submitted that it was simply unfair for a regulator to assert lack of integrity in one case and not in others on similar (indeed, more serious) facts.”

Mr Treverton-Jones submitted that there were no aggravating features over and above the simple refusal to provide a specimen – which he said was due to Mr Rafferty’s desire to speak to a solicitor – and he had no convictions for previous driving offences.

The SRA has since changed its policy so that allegations of lack of integrity in drink-driving cases were only made in cases with significant aggravating features, he pointed out.

On sanction, the SDT said the drink-driving was the result of a “significant error of judgment”.

However, the solicitor had shown “deep remorse”, apologised for his actions and promptly accepted full responsibility. Mr Rafferty’s misconduct was assessed as “moderately serious” and he was fined £2,500.

On costs, counsel for Mr Rafferty said his client had offered to pay the SRA a fine of £10,000, which was rejected. He applied for just under £11,000 in costs.

Rejecting this, the tribunal said the case was “properly brought” by the SRA and successful in part.

The SDT also rejected the SRA’s application for £6,000 in costs, saying it “had regard” for “persuasive observations” by counsel for the solicitor that the case had been referred to the tribunal by the SRA partly “on the basis of its misapprehension that its £25,000 internal fining limit was insufficient and the case required the tribunal to determine sanction”.

Mr Rafferty was fined £2,500 and there was no order for costs.




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