SDT: Complainant lacked credibility
A partner accused of repeatedly touching a female employee’s bottom has been cleared by a tribunal – although there was a dissenting judgment, an extremely rare occurrence.
Two of the three-person panel at the Solicitors Disciplinary Tribunal [1] (SDT) found the evidence of ‘Person A’ – who had been the firm’s practice director – to lack credibility.
Richard Daniel Smith said that, as a consequence of the allegations, he lost his partnership at Bournemouth firm Steele Raymond, lost a significant salary, and had to accept a reduced salary in his new position as an associate at a new firm. He felt he was “harshly treated” by the firm.
The prosecution alleged that Mr Smith, who qualified in 2004, first touched Person A inappropriately in March 2017, when she was bending under his desk to check computer connections.
Events came to a head five months later, when Mr Smith was accused first of cupping Person A’s buttock as she leant forward to place cups of coffee in a meeting room – clients were present but said to be unsighted.
Later the same day, he was said to have touched and squeezed her bottom while they were in an office kitchen.
She then made a complaint that Mr Smith had “patted” her bottom on a couple of occasions. But when giving a statement to the firm two weeks later, and before the tribunal, Person A said that actually Mr Smith had touched her bottom on a weekly basis since the first incident.
She also did not initially mention her claim that Mr Smith had grabbed her so hard in the kitchen that it “forced her underwear up the middle of her bottom”.
Asked during cross-examination why she did not simply tell Mr Smith to stop touching her, Person A said she “didn’t known how to address it” as he was a “senior partner” who was well regarded in the firm. She said it was only after the 4 August incidents that she felt able to challenge his conduct.
The majority of the tribunal – solicitor Andrew Spooner, a former president of the SDT, and lay member Lucinda Barnett, a former chair of the Magistrates Association – concluded that the inconsistencies in Person A’s evidence between her initial and subsequent statements “demonstrated that she was prone to exaggeration and embellishment which detrimentally impacted on her credibility”.
They found they could not rely on her evidence to prove the allegations beyond reasonable doubt – the hearing took place last November; the burden of proof is now the balance of probabilities.
The majority were fortified by the evidence of Person B, who was a close friend of Person A and a partner and head of family at the time.
Though Person A had reported the initial incident to her, the majority said they “found it surprising that, given the closeness of their relationship, and the fact that Person B held a senior position in the firm, Person A did not mention the alleged ongoing weekly inappropriate touching to her”.
The majority also accepted the evidence of one of the clients in the 4 August meeting that Mr Smith had not been behind Person A at any time.
They found Mr Smith’s answers at the hearing to be credible, while his concession that he did sometimes have conversations with female colleagues about “intimate areas” of their bodies was to his credit, “as it demonstrated honesty on his part”.
They concluded that Person A was not a credible witness and Person B did not assist in corroborating her allegations. They preferred Mr Smith and the client’s evidence.
The panel chair, solicitor Ashok Ghosh, dissented, saying excessive weight should not be accorded to the fact that Person A’s evidence was uncorroborated.
“In less enlightened times, there was a view that the uncorroborated evidence of a female in cases of unwanted groping and inappropriate touching should be approached with caution. Such views, rightly, are now regarded as having been misconceived.”
For him, “the quintessential evidential aspect of this case is the absence of any motive or reason for Person A to lie” – especially given the difficulties she would have known it would cause her at work.
Mr Smith put forward a range of possible motives, which the majority found “speculative” but said they did not damage Mr Smith’s credibility. Mr Ghosh said they lacked any credibility.
He added: “In my opinion, too much store should not be placed by the fact that Person A did not report the incidents which are alleged to have occurred between March 2017 and 4 August 2017 for five months.
“Due weight should, instead, be given to the fact that Person A may have felt that her position in the firm would become very difficult for her if she, as a relatively junior facilities manager, were to complain about a partner.”
Describing him as a “singularly unimpressive witness”, Mr Ghosh highlighted Mr Smith’s “equivocation” during cross-examination, such as how his concession about “intimate areas” discussions only followed repeated questioning: “This equivocation is not mentioned by my fellow members.”
Mr Ghosh added: “The attitude of the respondent towards women and his tendency to view them as sexual objects is, in my opinion, significant. In his witness statement he states that he found Person A to be ‘over-weight and very far from the kind of woman I had dated before I was married’.
“And in his oral evidence he repeated the point, stating that he had an attractive wife. In any event the [Solicitors Regulation Authority] has not relied on sexual gratification as the sole possible motive for the inappropriate touching and groping.
“The respondent may also have been motivated by a perverted desire to obtain gratification by the exercise of power – the power wielded by a partner in a law firm in his ability to humiliate a relatively junior employee.”
Mr Smith was asked to leave Steele Raymond following its investigation. Person A was made redundant, for unrelated reasons, in February 2018.
The majority of the tribunal ordered that each side should bear its own costs.
The only other time in recent memory that an SDT panel has come to a majority verdict was in the Leigh Day case in 2017, and also in the associated costs ruling, when it was a different majority.