Decision date: 26 October 2012

Panel entitled to take into account adverse findings against solicitor following unsuccessful Newton hearing.

A Solicitor (S) had admitted breaching the conditions of his practising certificate and misappropriating client money before the Solicitors Disciplinary Tribunal (SDT). S alleged, however, that his employer had been aware of most of what he had been doing. Given that the employer disputed that fact, the Solicitors Regulation Authority (SRA) were unwilling to accept that as a basis of plea. A Newton hearing ensued, at which S’s account was rejected and he was disbelieved. S’s name was struck from the Roll.

S appealed that decision, arguing that the tribunal were wrong to place considerable weight on the fact that he had been, in their view, an evasive witness. His credibility as a witness in a Newton hearing was not, in his submission, a relevant factor. It was further argued that had the SRA accepted his basis of plea, the aggravating features would not have arisen and that the ultimate sanction would not have been imposed.

The Court considered the case of R. v Underwood (Kevin John) [2004] EWCA Crim 2256, in which the Court of Appeal laid down guidance with regards to Newton hearings.

It was held that the tribunal was entitled to consider S’s credibility as a witness. The subject matter of the Newton hearing was directly relevant to the charges and was necessary to resolve an important matter in issue. It would have been artificial for the tribunal to ignore its own adverse finding in relation to S.

As was recognised in the criminal case of Underwood, adverse findings against a defendant after a Newton hearing will affect any credit they are entitled for their guilty plea; not least because witnesses may have had to attend and be cross examined. It can also lead to a demonstration of an on-going lack of remorse on the part of the defendant. Similarly in the regulatory field, adverse findings after an unsuccessful Newton hearing can properly be taken into account by panels when determining the final outcome.