The High Court ruling in November that overturned the Solicitors Disciplinary Tribunal (SDT)’s finding against ex-Freshfields partner Ryan Beckwith has sent shockwaves reverberating around the profession.
In the unlikely event that the substance of the ruling has escaped anyone, the Queen’s Bench Division’s judgment reversed the SDT’s October 2019 findings that Beckwith’s drunken sexual activity with an intoxicated associate breached Principles 2 and 6 of the Solicitors Regulation Authority (SRA)’s code of conduct, reversed his £35,000 fine and quashed the £200,000 costs order.
The respective points relate to the SRA’s code requiring solicitors to ‘act with integrity’ and ‘behave in a way that maintains the trust the public places in you and in the provision of legal services’.
At best, the High Court judgment makes a mockery of a tribunal that has long been lacking in gravitas and firepower. At worst, this has been a huge setback in the strides the SRA has taken, since the dawn of the #MeToo movement, in being seen to be tackling the insidious problem of sexual misconduct in a hierarchical legal industry.
The extent to which the regulator felt the need to take a high-profile scalp from the Magic Circle partner is open to debate, but the connection between the allegations brought by the SRA against Beckwith in May 2019 and the basis on which the tribunal came to its decision has always been alarmingly ambiguous.
Suzanne McKie QC, a sex discrimination and harassment specialist and the founder of Farore Law, agrees with the High Court judgment on the basis that the SDT’s reasoning was fundamentally flawed. ‘The tribunal decision was a bit of a mess. It wasn’t reached on the basis the sex was non-consensual because of the level of intoxication. The SDT found as a fact that Beckwith didn’t abuse his position, perhaps because she was leaving and he no longer had any authority over her. The tribunal also doesn’t find that Person A was vulnerable. So the activity is essentially private and consensual, happening in a private place away from the office. You can’t say it brings the profession into disrepute and you can’t hold lawyers up to a much higher standard in their personal life than anyone else.’
It is clear that the High Court disapproves in the strongest terms on regulators interfering in what it deems private matters, contravening Article 8 of the European Convention on Human Rights – the right to a private life.
The court said: ‘Regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.’
There are obvious questions around whether the SRA’s principles, essentially a list of headline behaviours with little detail, and its placing the impetus on the lawyers to self-regulate, has been a flawed approach.
‘There is a real issue around whether a principles-based approach to the code can be enforced when the High Court is able to cut the legs from under the SDT and SRA. It undermines the principles-based approach and undermines the tackling of sexual misconduct,’ says Richard Moorhead, professor of law and professional ethics at the University of Exeter and a former director of UCL’s Centre for Ethics and Law.
Yet the bigger problem seems still to be the ‘amateur hour’ reputation of the SDT, with too many part-timers and lacking sufficient professional nous about it for some time. The Beckwith case will inevitably, and rightly, call into question the tribunal’s competency in handling such serious complaints.
It could also be questioned whether the SRA’s clamping down with its new code of conduct hasn’t pushed reporting imperatives too much the other way, with solicitors rumoured to have dobbed in colleagues on the strength of little more than office gossip.
The Beckwith saga also crucially begs the question of whether the outcome would have been different if the prosecution hadn’t taken place before the SDT’s 25 November 2019 shift from a criminal to a civil standard of proof, in line with the majority of professional regulators. The shift replaced ‘beyond reasonable doubt’ with the less stringent ‘balance of probabilities’ test, making it easier to secure misconduct prosecutions and potentially triggering a new round of actions.
Really it is down to law firms themselves to tackle allegations with the gravity they deserve and forensically analyse the facts around abuse of authority, private/personal conduct and consent before the regulator gets involved.
The judgment may be seen as a fair conclusion to a mishandled prosecution but that is not to say the SRA wasn’t in the right to refer the case in the first place. Now all eyes will be on whether the regulator takes its case to the Court of Appeal, if only to shore up the principles in its code of conduct and restore them to some semblance of a respected framework.
After all that progress, it would be extremely damaging to the fight against misconduct if the regulator were to go back to a having a bark worse than its bite.