Sukul v Bar Standards Board [2015] EWHC 2338 (Admin)

14 May 2015

Background

The original complaint against Mr Sukul (‘S’) originated from Master Egan QC, the Registrar of the Criminal Appeals, to the Bar Standards Board on 31 October 2012. This was after a hearing before Master Egan QC on 19 October 2012 in order to consider S’s failure to respond to the Court of Appeal’s Criminal Division (‘CACD’) invitation to draft perfected grounds of appeal and an accompanying advice. It was at this hearing before the Master that S admitted that he had no professional locus in the matters for many months, and that he had made it clear to his solicitors that there were no viable grounds for appeal. He stated that his solicitor had asked him to draft “holding grounds” and that he never intended those grounds to be filed but that he had meant to help his instructing solicitor who wanted to continue their relationship with the lay client who was at the time charged with murder. During the hearing, S stated that: “I helped my solicitors because they wanted to continue to work with Mr L for perhaps pure economic reasons. That is why, and I helped out because I wanted to continue to work.

Master Egan QC referred the case to the Bar Standards Board, after finding that S had drafted Grounds of Appeal when there were no such grounds of appeal.

Disciplinary Proceedings

The first tribunal

This case was originally heard on 3 February 2014, and S did not attend.  The 5 person disciplinary tribunal found the 2 charges against S proved to the criminal standard. Charge 1 related to S having prepared the Grounds of Appeal which he knew were false and had provided them to solicitors knowing they were to be seen by the lay client. Charge 2 related to recklessly misleading the CACD into believing that the application to appeal was a true document and that there were genuine grounds when the appellant knew there were no such grounds and failing to notify the CACD of that fact. The first tribunal found the following aggravating features in relation to charge 1: indirect financial gain, deception, breach of trust and an element of dishonesty and a lack of remorse. It concluded that disbarment was the appropriate sanction for charge 1 and a suspension of 9 months in relation to charge 2.

The second hearing

S appealed the first tribunal’s decision in relation to the sanction imposed of disbarment on charge 1. The Divisional Court concluded that the original tribunal should have afforded S the opportunity to make representations in relation to the sanction imposed. It therefore allowed the appeal on this basis and the sanction was quashed and referred back to a newly constituted 5 person panel, in order for S to make representations in relation to the sanction imposed in relation to charge 1.

The second tribunal found that “the heart of the case was that the appellant had prepared grounds of appeal which he knew were false and had provided them to solicitors knowing they were to be used to appease [the lay client]". The tribunal acknowledged that dishonesty had not been expressly pleased in charge 1, however they concluded that: “in the circumstances of this case, it was hard to see how false documents could be created other than with an element of dishonesty. The instructing solicitor asked him to create false documents [in the words of the first tribunal] to keep the client sweet.” [See paragraph 13 of the judgment, Beatson, LJ]. The second tribunal found that no lesser sanction than disbarment would meet the need to protect the public.

The Appeal

S appealed on 3 grounds, all of which were dismissed by the Court of Appeal.  The grounds of appeal and the findings of Beatson LJ are set out below.

  1. There was no, or no sufficient, evidence to support a finding of dishonesty. 

Beatson LJ rejected the submission that there was insufficient evidence to support a finding of dishonesty. The Court of Appeal confirmed the test inBryant v The Law Society [2007] EWHC 3043 (Admin), and that the real issue for the court in this case was not the first Bryant question, whether the appellant acted dishonestly by ordinary standards of reasonable and honest people. The real issue was the second question, whether the appellant was aware that by those standards he was acting dishonestly.

Beatson LJ concluded that the tribunals were entitled to find that by the standards of reasonable and honest barristers, S had acted dishonestly.  Beatson LJ found the dishonesty element was clear from the emails before the tribunal from S to his instructing solicitor on 11 October and 26 November 2012: “You asked me as a favour to draft some grounds of appeal because you wanted to ingratiate yourself with Lindsay [the lay client] for him not to sack DL [Duncan Lewis] on his murder case. You promised me a case in return after you sacked me on the murder. You never gave me a thought, let alone a case.

The second email was following the hearing at the CACD before the Registrar: “You know full well that you asked me to those grounds of appeal so that you could appease Lindsay so that he does not sack Duncan Lewis for his murder at the Bailey.  The grounds are dated March 2012.  Lindsay was convicted in November 2011. Those dates show clearly that there were no prospects of an appeal. If not, I would have formulated the grounds within the statutory 28 days of conviction.

S argued that the second tribunal did not expressly articulate the second limb of the Bryant test, and S therefore submitted that this was an error in law. This argument was rejected and a finding made that it was open to the tribunal to conclude that the subjective element of dishonesty was satisfied.

  1. The tribunal erred in law and in fact in finding that there had been a breach of trust by the appellant.

This ground was also rejected. S argued that because he was no longer instructed in the murder trial by March 2012, there was no professional relationship with the solicitor or the client, and therefore no breach of trust. At paragraph 35, Beatson LJ finds that “the appellant had drafted grounds in January and in March which he knew were to be shown to the lay client or former lay client, to create the impression that an appeal was viable. It is unarguable that such conduct is not a gross breach of duty to the client whether or not the relationship had ended by March.

  1. The sanction of disbarment was disproportionate.

S submitted that the sanction was disproportionate and submitted that the tribunal failed to take adequate consideration of the mitigation before them.

At paragraph 35 of his judgment, Beatson LJ rejected this submission and relied upon the decision in Bolton v The Law Society [1993] EWCA Civ 32: “that often a disciplinary sanction is not punitive in intention but is either to ensure that the offender does not have the opportunity to repeat the offence or, which Sir Thomas Bingham MR described as the most fundamental purpose, to maintain the reputation of the profession as one in which every member, of whatever standing, maybe trusted to the ends of the earth (see paragraph 15). Sir Thomas was there considering the disciplining of a solicitor. But this case has always been regarded as the hallmark of guidance in relation to the disciplinary proceedings of both branches of the legal profession and indeed other professions.

Beatson LJ confirmed that unless there is a clear error of law or procedural unfairness, the scope of the appellate court is not to interfere with a professional panel’s findings, when they are best placed to judge the members of the same profession.  The appeal was therefore dismissed.

Key learning points

This case provides further guidance for cases involving dishonesty and particularly how to apply the test in Bryant. The Court of Appeal confirmed that the fact that dishonesty had not been expressly pleaded did not vitiate the panel’s findings of dishonesty on the basis of a procedural irregularity. The panel in this case had made it clear in their findings that they considered S’s actions as dishonest. S was therefore on notice of the dishonesty element which would clearly impact upon any sanction imposed.

Although the Court of Appeal held that there was no procedural irregularity for not pleading dishonesty, this case does emphasise the need for care to be taken when drafting charges. The best course is where the case features dishonesty the regulator should expressly plead this element. This means that the registrant can meet their case from the outset, and the regulator cannot be accused of procedural irregularity.  Pleading all elements of the regulator’s case means that cases are run in a fair and transparent way, and avoids any criticisms to the contrary.