SDT: Solicitor did not want to get caught
A solicitor specialising in actions against the police who failed to disclose the existence of a warrant to counsel and the court has been struck off by the Solicitors Disciplinary Tribunal (SDT).
The SDT said Duncan Peter Burtwell admitted misleading the court and “dishonesty which struck at the heart of what the public would expect of a solicitor”.
Mr Burtwell, admitted in 2004, was a consultant solicitor at virtual law firm Scott-Moncreiff and Associates.
The Solicitors Regulation Authority (SRA) said, in an agreed outcome with Mr Burtwell approved by the SDT, that he acted for Client A between April 2017 and February 2020 in a claim against Hampshire Constabulary for injuries sustained during the execution of a warrant at his home.
The warrant had been issued by Basingstoke Magistrates’ Court for police and mental health professionals to attend Client A’s home and, if necessary, detain him, which is what happened. A copy of the warrant was needed to establish if it was executed lawfully.
Person B, Client A’s sister, was the point of contact for him and handled the claim on his behalf. She told Mr Burtwell in June 2017 that she had found a copy of the warrant “at her brother’s home, folded in half on his doormat at the front door”.
It was not until May 2019 that the solicitor emailed Person B, asking for a copy of the warrant.
She supplied it the following month, both by email and by post to a colleague of Mr Burtwell, who forwarded it to him.
Nevertheless, the solicitor signed a witness statement for the hearing on 1 July 2019, which gave the “impression” that the warrant was not available. If it had been, it should have been disclosed.
He told the SRA that he had deliberately not told counsel so they did not have to disclose its existence if asked about it at the hearing.
Once he saw counsel’s skeleton argument, Mr Burtwell discovered that counsel planned to rely on the warrant’s absence far more than he had anticipated. “This caused me significant misgivings and I remember panicking somewhat when speaking to counsel.
“I recall at this point feeling the childish wish that we did not get ‘caught’ on this issue, and that once we were through the hearing we could move on with correcting the position.”
District Judge Nichols at Basingstoke County Court proceeded on the basis that the warrant was not available; he dismissed the police authority’s claim for summary judgment on the claim for false imprisonment.
Mr Burtwell admitted the existence of the warrant to his barristers for the first time in October 2019. It was also sent to Hampshire Constabulary.
The solicitor signed a statement of truth the following month saying the warrant had “recently been located”.
Mr Burtwell admitted to the management of Scott-Moncreiff that he had consciously withheld the warrant in February 2020, saying: “I feel sick just thinking about it.”
He referred himself to the SRA in March 2020, followed by a report from the law firm.
At an appeal hearing in September 2020, His Honour Judge Parkes QC, sitting at Winchester County Court, said there were “very serious questions” as to whether the court had been misled by Mr Burtwell.
The solicitor admitted that he had acted dishonestly in failing to disclose the warrant to counsel, the defendant and the court between June and October 2019 and in signing a misleading witness statement in June 2019 which failed to mention that he had the warrant.
He admitted signing another misleading witness statement in November 2019 which contained inaccurate statements as to his knowledge about it.
In mitigation, not agreed by the SRA, he claimed to have “hoodwinked himself into thinking that his position, to withhold the existence of the warrant, was legitimate and that you cannot lie by omission, which in reality this was what he was doing”.
The SDT said Mr Burtwell had admitted “serious misconduct involving misleading the court and dishonesty which struck at the heart of what the public would expect of a solicitor”, namely that he or she should be ‘trusted to the ends of the earth’.
“The allegations spanned a period of several months and the conduct was not momentary.”
Mr Burtwell was struck off and ordered to pay £15,000 in costs.