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William England and Jim Olphert consider the consequences for the legal profession of the high-profile decision involving the former partner of Freshfields LLP.
On 27 November 2020 the High Court handed down their judgment in Ryan Beckwith v SRA  EWHC 3231 (Admin). The ruling will affect the approach of the Solicitors Disciplinary Tribunal (SDT) and the Solicitors Regulation Authority (SRA) moving forward. In their ruling the High Court wrestled with the thorny issues of the interpretation of the concepts of integrity and misconduct and the kinds of behaviour that can amount to professional misconduct. In respect of misconduct their conclusion was particularly notable – while misconduct can arise from a professional’s private life, it must only do so where that private life “realistically touches” on their professional practice (Para 54). It also added that the public had a legitimate expectation that other members would treat junior members of the profession with respect, and that an abuse of that position of authority could amount to a breach of the duty of fair treatment.
This article seeks to explore the implications of this judgment, which was handed down on a day when the Law Society Gazette reported on the BSB’s Independent Decision-making Body Regulatory Decisions Annual Report 2019-2020, noting in its headline “Complaints about barristers surge as focus shifts to private behaviour“.
In their 61-paragraph judgment, the President of the Queen’s Bench Division and Swift J dealt with an appeal arising from a Solicitor’s Disciplinary Tribunal decision in respect of Mr Beckwith. Mr Beckwith, a partner, was alleged to have conducted himself inappropriately with an outgoing associate from his firm during and after a leaving party thrown for her. The panel at first-instance was considering not only inappropriate and sexual conduct, but whether such conduct demonstrated that Mr Beckwith had failed to meet the standards of integrity and maintaining public confidence required by Principles 2 and 6 of the 2011 SRA Handbook.
The appeal was made on a number of grounds, but the relevant limb here is whether adjudicating on a professional’s private life could reasonably amount to a breach of that professional’s article 8 European Convention on Human Rights (“ECHR”) right to a private life.
In assessing this submission alongside the concept of legal certainty, Dame Victoria Sharp P and Swift J concluded:
53. “For the reasons we have already set out, neither Principle 2 nor Principle 6 has unfettered application across all aspects of a solicitor’s private life. So far as concerns the requirement of legal certainty, because the requirements of each Principle are to be determined by reference to the contents of the Handbook (considered as a whole, and in particular the matters set out in the 2011 Code of Conduct), there is no reasonable scope for argument that either Principle 2 or Principle 6 fails to meet the standard required for legal certainty, set out in the judgment in James.
54. There can be no hard and fast rule either that regulation under the Handbook may never be directed to the regulated person’s private life, or that any/every aspect of her private life is liable to scrutiny. But Principle 2 or Principle 6 may reach into private life only when conduct that is part of a person’s private life realistically touches on her practise of the profession (Principle 2) or the standing of the profession (Principle 6). Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook. In this way, the required fair balance is properly struck between the right to respect to private life and the public interest in the regulation of the solicitor’s profession. 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.
The Court allowed the appeal.
Recent Decisions and Legislative Position
Other regulators have similar broad provisions covering general conduct, which by implication must bite outside of work. Indeed, in the healthcare sphere, a number of regulators have provisions in their respective mandates which make such involvement necessary. Article 21(3) of the Health Professions Order 2001 notes that misconduct, or any other statutory ground “is not prevented from applying because the allegation is based on a matter alleged to have occurred outside the United Kingdom or at a time when the person against whom the allegation is made was not registered.” The Medical Act 1983 (as amended) shares a near-identical provision at s.35C(3)(a)(i) and (ii). It is plain from those provisions that it was the legislative intention for the heads of the statutory grounds to have broad application.
Whilst the judgment is firmly rooted in the SRA’s particular rules, the extent to which a regulator might touch upon matters arising from a professional’s private life is a subject which, as alluded to above, has been examined before by appellate courts. The below examples from medical regulators demonstrate the challenges presented to the Courts in considering these issues.
In Ngole v University of Sheffield (Health and Care Professions Council intervening) 2017 EWHC 2669 (Admin) the High Court were tasked with determining the extent to which another ECHR article (this time article 10) might impinge upon professional discipline cases. In that case their focus was whether public social media posts made on the basis of personal religious views might amount to a fitness to practise concern. The Court stated that “Professional discipline, rightly, sits relatively lightly on its members outside the workplace, but it is never entirely absent where conduct in public is concerned“.
In R (Pitt and Tyas) v General Pharmaceutical Council 2017 EWHC 809 (Admin) two pharmacists brought a judicial review claiming that the GPhC rules were ultra vires on the basis that they breached articles 8 and 10 of the ECHR. In dismissing the Claimants’ claim regarding Standard 6 (which calls for professional behaviour ‘at all times’), Singh J stated:
37. “First, in my view, the Claimants’ interpretation of the new Standards is simply wrong. The Standards need to be interpreted fairly and as a whole. They also need to be interpreted in a way which is rooted in real life and common sense. This is not least because they are intended to guide the conduct of pharmacy professionals in a practical way; they are not addressed primarily to lawyers. The relevant obligation in the Standards is to behave appropriately at all times. As the Standards themselves make clear, the examples given are just that. They are intended to be helpful to illustrate what may or may not be appropriate conduct. If the Claimants are not polite over a board game they will not need to lose sleep over whether they can make the relevant declaration that they have complied with the Standards.
38. On the other hand, there may be occasions which occur outside normal working hours and perhaps in a context which is completely unrelated to the professional work of a pharmacist which may be relevant to the safe and effective care which will be provided to patients. For example, if a pharmacy professional engages in a racist tirade on Twitter, that may well shed light on how he or she might provide professional services to a person from an ethnic minority.
When one reads across this line of authorities there appear to be two significant aspects of the decision in Beckwith that might assist those regulated professionals in understanding where the line is to be drawn.
The first is that the conduct must touch in some way on the registered professional’s practice. This clarifies the position following decisions such as Ngole and imports their impact into legal regulation. The second is that to the extent that the conduct is within a private space, tribunals ought to exercise additional caution in taking regulatory action. It is clear from the judgment that the Court viewed the actions of the registrant in this case as falling into that private space in light of the panel’s first-instance findings of fact. It is likely, however, to be all the more challenging as personal and professional; public and private spheres blend and shift on social media and elsewhere.
As the Gazette article notes, there has been a marked increase in BSB referrals touching on matters outside professional practice. The Report itself notes that the 175 referrals relating to conduct outside professional practice is “a considerably higher proportion of reports” and goes on to say that “The regulation of non-professional activities is a topic that has generated much debate both within legal regulation and more generally.”
Whether this conduct is public or private, and the extent to which either applies to professional standards and misconduct is doubtless going to require additional consideration by those adjudicating on these matters at the first instance as the number of these cases reaching panels increases. The BSB themselves recognise this fact – “We have committed to considering and developing, in 2021/22, our approach to the factors and issues we will take into account when assessing whether the conduct of barristers outside the direct sphere of their professional lives should be a matter for regulatory intervention.”
Of course, it is not merely in the context of SRA or BSB referrals that these careful assessments will be required. The decision in Beckwith is also likely to have a wider regulatory impact. As the conduct of registered professionals on social media and other forums expands, regulators will need to be increasingly alive to the extent to which such conduct is straying into the public sphere sufficiently to warrant intervention.
A number of regulators have begun to recognise this fact with express policies on social media use, and the extent to which matters will be assessed with reference to those policies will doubtless be a topic of some interest as these cases are reviewed and decisions are to be made on whether they warrant further regulatory action.
While the judgment in Beckwith serves to stem the flow and invites regulators to rethink their intervention in these instances, it is clear from the way the case was presented at first-instance that there will continue to be cases brought by regulators linked to professionals’ personal conduct, be it in the public or private sphere.
Registered professionals, it seems, will need to continue to be vigilant of their personal conduct, albeit with the benefit of a clearer framework.
William England is a leading junior and is recommended in the Legal 500 2021 and Chambers and Partners Directory 2021. He is a regulatory consultant at Prospect Law and a specialist in financial crime and regulatory compliance. He has represented registered professionals and individuals in the medical and healthcare sector accused by their regulatory bodies of misconduct and fitness to practise impairment. He has been variously described as “a force of nature.”, “very shrewd, good with clients and a fine cross-examiner”, “an exceptionally bright and extremely hard-working barrister” (Chambers and Partners 2021), and “a fighter who oozes confidence” (Legal 500).
Jim Olphert has significant experience in the field of professional discipline. He has acted before a number of disciplinary tribunals as junior alone in matters ranging from serious fraud to sexual misconduct. He also has experience in regulatory advice and policy, advising regulators on standards, disciplinary action and enforcement.
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