Khan: Not deprived of her right to remain silent, says CA
The Court of Appeal has rejected former solicitor Sophie Khan’s bid to overturn a contempt of court ruling sought by the Solicitors Regulation Authority (SRA) that will see her head to jail for a second time.
Lord Justice Nugee rejected her main argument that Mr Justice Leech erred in his approach when deciding that Ms Khan was fit to plead.
In March 2023, Leech J sentenced her to a year in prison after finding that she had made “a sustained and deliberate attempt to mislead the court”.
The saga began in August 2021, when the regulator intervened in her practice, Leicester-based Sophie Khan & Co, saying there was “reason to suspect dishonesty” on her part.
Ms Khan, also known as Soophia, did not comply with SRA demands to provide the firm’s papers. As a result, in January 2022 she was sentenced to six months in jail for contempt for breaching two court orders. She served three months before being released.
The SRA applied for a further order for documents while she was still in prison, which was granted by Mr Justice Miles. The failure to comply with this led to the second committal.
Ms Khan was struck off later in 2022.
Leech J said an expert psychiatrist’s report found that Ms Khan had presented with “signs and symptoms that are suggestive of Adjustment Disorder, namely, mixed anxiety and depression and that there is also a possibility that she may be suffering from Autism Spectrum Disorder and dysfunctional personality traits”.
But he also described her as “cognitively alert to understand the court proceedings and can put her views, opinions and wishes in her defence. However, she does not believe that the accusations are morally right”.
Leech J said that, if anything, the report supported his conclusions that Ms Khan understood the terms and effect of the Miles order.
On appeal, Nugee LJ found that the judge had applied the correct test of fitness to plead and that he did not need further evidence in reaching his decision that Ms Khan was fit.
He also rejected an argument of serious procedural irregularity based on Leech J’s failure to warn Ms Khan that, if she did not give evidence in her own defence, an adverse inference might be drawn. The SRA’s counsel had stated in his oral opening that he would be inviting the court to draw such an inference.
Nugee LJ said warnings from the bench “are likely to carry more weight than what counsel says” – whether or not it was always strictly required, “I think the better practice is for the judge to address the point himself”.
He continued: “But in the circumstances of the present case I accept that if there was a procedural defect it was at most a minor one, not a serious one… I do not think the fact that Leech J did not himself repeat [counsel’s] warning can be characterised as a serious procedural irregularity.”
In any case, Leech J made it clear that he did not in fact rely on adverse inferences in reaching his decision.
Concurring, Arnold LJ noted that Ms Khan made four affidavits in opposition to the SRA’s second committal application.
“Ms Khan chose to rely upon these affidavits in opposition to the application. Somewhat remarkably to my mind, she was permitted to do so without consenting to be cross-examined on them.
“She elected not to give oral evidence after being warned by counsel for the SRA that, in that event, he would invite the court to infer that she had no better answer to the charges against her than those she had given in her affidavits.
“Moreover, she made that election at a time when she was professionally represented by solicitors and counsel.
“In my view the proposition that Ms Khan was deprived of the right to remain silent can only be described as preposterous.”
The Court of Appeal went on to reject an appeal from Ms Khan’s two law firms against the findings of contempt against them, which were essentially made on the same grounds as Ms Khan’s.
Finally, it refused Ms Khan’s application for reconsideration of the November 2023 refusal by Newey LJ of an extension of time for her to appeal against the first committal appeal.
Very interesting