KC condemns SRA for “unprincipled approach” to fines


Treverton-Jones: Left hand doesn’t know what the left hand is doing

The Solicitors Regulation Authority (SRA) has demonstrated a “shambolic and unprincipled approach” to the use of its fining powers, a leading regulatory KC argued in a recent prosecution before the Solicitors Disciplinary Tribunal (SDT).

As we reported yesterday, James Rafferty, a Baker McKenzie solicitor, was fined £2,500 after he was convicted of failing to provide a sample of his breath having been pulled over for drink-driving.

But the tribunal rejected the SRA’s allegation that his actions showed a lack of integrity.

Greg Treverton-Jones KC said the SRA’s fining guidance was vulnerable to challenge in judicial review proceedings on grounds that it was unlawful.

He also criticised the SRA for diverging so far from the approach of the SDT in reaching fines by “tapping figures into a calculator”, rather than using “careful and mature human judgement”.

Though cases involving drink-driving where there are no aggravating factors are generally dealt with by the SRA using its own powers to rebuke and fine a solicitor, the KC submitted that this one was sent to the SDT because application of the SRA’s “flawed” fining guidance meant a starting-point fine (before mitigation) of £67,500 – the SRA can only fine up to £25,000.

This led the regulator to “throw the book” at Mr Rafferty and add the lack of integrity allegation, he suggested.

In argument before the tribunal, he pointed to a host of other drink-driving cases dealt with internally by the SRA which, he said, were more serious than Mr Rafferty’s and did not include a lack of integrity allegation.

This was “a shambolic and unprincipled approach by the regulator to the exercise of its statutory powers”.

Indeed, even before Mr Rafferty was brought before the SDT, the SRA changed its approach to drink-drive offences, deciding that fines are no longer appropriate.

A 2024 consultation on updating the fining guidance said “cases in which a warning or rebuke were not appropriate were those that involved repeated criminal behaviour, or serious aggravating factors in addition to the commission of the offence”.

The SRA’s fining guidance uses a scoring framework to set an indicative penalty within one of four severity bands, based on the nature and impact of the misconduct, taking into account aggravating and mitigating factors.

Its shortcomings were shown by the figure of £67,500, Mr Treverton-Jones submitted. He also said: “Assessing the amount of a fine should be a complex exercise of human judgment, in which mathematical calculations play only a subsidiary role…

“The imposition of a penal sanction should not be the result of tapping figures into a calculator, but rather the product of careful and mature human judgement, by which the decision-maker balances the basic facts of the offence, and the aggravating and mitigating circumstances so as to arrive at a sanction which is fair and broadly in line with sanctions for similar offences.”

This was how the SDT itself operated, alongside less prescriptive sanctions guidance, the KC said, and was a better way to achieve a greater consistency of approach.

“The SRA thought it knew better than this tried-and-tested system, and sought to strike out on its own, and ape the approach adopted in the financial services industry. However, there is no real comparison to be made between the two: bankers, accountants etc are not fiduciaries, and the turnover of large financial institutions dwarfs that of even the largest firms of solicitors.”

The result was two disciplinary authorities, the SRA and the SDT, “which exercise their powers to fine those they regulate in completely different ways”.

Mr Treverton-Jones said: “This is illogical and unfair, and it is frankly astonishing that such a situation has been permitted to develop in the legal profession, whose regulatory arrangements ought to be a beacon of fairness and good sense.”

Further, the SRA fining guidance was vulnerable to challenge by way of judicial review for various reasons, including the failure to take into account the penalty imposed by the court and the reliance on gross salary, rather than net salary, which both the criminal courts and the SDT used.

It meant too that high earners would be dealt with by the SDT but lower earners by the SRA – “yet the respective gravity of the misconduct leading to the conviction may point in the opposite direction. This is bound to lead to quixotic and unfair results”.

He added: “The SRA’s approach also discriminates against older solicitors, who tend to earn more than their younger colleagues, and against London-based solicitors, who tend to earn more than their provincial counterparts.

“Where such discrimination involves dealing with the two cohorts in completely different disciplinary systems with wildly different outcomes, it is plainly unjustifiable.”

He concluded: “It is sometimes said of large organisations that the left hand does not know what the right hand is doing. In respect of the SRA’s exercise of its statutory powers to fine those they regulate, the regulator’s left hand does not even appear to know what the left hand is doing.”




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