In proceedings before the Solicitors Disciplinary Tribunal it has for very many years been a requirement that a solicitor should clearly know the case that he or she has to meet. In other words, there is an obligation on the SRA to properly plead its allegations and the facts that support them. To fail to do so causes at best confusion and at worst serious injustice.
The case of John Malins v SRA CO/3223/2016 was an appeal determined in April 2017 and was yet another reminder of the need for prosecutions to be scrutinised with great care.
The facts of the case were relatively simple. Mr Malins faced a prosecution containing three allegations relating to the creation and deployment of two backdated documents. He created them both on his firm’s computer and then sent them by e mail. The actions were separated by quite a short period of time as you might imagine.
It was a curiosity that the deployment of the documents by e mail was said to have been dishonest but their creation a few minutes earlier was not. The Judge said:
“How it can be said with any kind of logical rigour that documents which were finalised a few minutes before the email was sent were not dishonest but the email itself was is beyond me.”
In the tribunal proceedings themselves, it is apparent that Mr Malins ended up facing a dishonesty prosecution in relation to the creation of the documents notwithstanding the absence of a dishonesty allegation in the Rule 5 statement. The prosecution appeared to have shifted during the hearing. The Judge said:
“It is clear to me that notwithstanding repeated assertions to the contrary Mr Malins found himself facing a case of dishonesty in relation to the first two allegations. It is elementary, and supported by abundant authority, that if you are accused of dishonesty than that must be spelt out against you with pitiless clarity. In my judgment you cannot circumvent this obligation by pleading the same facts and matters as want of integrity. We do not have in our system dishonesty in the first degree and dishonesty in the second degree”
What this appeal does is highlight the obligation on the SRA to clearly state its case by reference to the evidence. It cannot make widely drafted allegations and seek during the hearing to expand them beyond the written pleading.