Adesemowo v Solicitors Regulation Authority (SRA) (2013) QBD (Admin) (Dingemans J)
The consequences for failing to declare cautions and convictions have been highlighted in two recent cases, demonstrating the different consequences depending on the profession in question.
In Adesemowo v Solicitors Regulation Authority (2013) QBD (Admin) (Dingemans J) 13.06.2013, a would-be solicitor failed in his appeal to overturn the decision of the Solicitors Regulation Authority (SRA) to refuse him admission to the roll.
Mr A had received a conviction for taking a vehicle without consent. He was fined and disqualified from driving for two months. He had originally qualified in Nigeria. When he applied to the SRA for a certificate of eligibility as a part of the Qualified Lawyers Transfer Test (since replaced by the Qualified Lawyers Transfer Scheme), he did not declare the conviction.
The conviction subsequently came to light during the criminal records checking procedure. When Mr A applied to join the Roll and was asked again whether he had any convictions, he answered 'yes'. He also stated that he had previously disclosed the conviction. He was asked by the SRA why he had failed to disclose the conviction when he had applied for the certificate of eligibility but gave no satisfactory explanation.
Taking into account the character requirements needed for admission to the Roll, the SRA determined that it was not satisfied that the requirements had been met. Although the SRA did not allege dishonesty or negligence in failing to declare the conviction, its view was that Mr A had given no adequate explanation for his failure. It determined that Mr A should not be admitted to the Roll.
On appeal, it was held that the SRA’s reasoning was fair and was firmly based on the evidence. The court held that Mr A’s actions in failing to disclose the conviction initially were enough to cast doubt on his character. It had been entitled to consider that Mr A had not satisfied the character requirements because he had given no adequate explanation of why he had failed to disclose the conviction when first required to by the application for certificate of eligibility.
The appeal was dismissed.
In the case of Hassan v General Optical Council (2013) QBD (Admin) (Leggatt J) 16.05.2013, Mr Hassan was a student optometrist who appealed against the decision, made in March 2012, to strike him off the register of student optometrists. He had been cautioned for fraud but did not declare the caution on two forms that he completed in order to remain on the register. He had believed that he was required to disclose only convictions. When he realised the error, he declared the caution and then faced allegations of dishonestly failing to declare the caution.
The Council’s Indicative Sanctions Guidance stated that dishonesty was particularly serious as it may undermine trust in the profession. It gave as an example of dishonesty, the failure to disclose criminal convictions and cautions.
Following advice from the legal adviser, the committee determined that Mr Hassan was guilty of serious dishonesty and that he should be erased. The legal adviser referred the committee to the case of Solicitors Regulation Authority v Sharma  EWHC 2022 (Admin) in which it had been held that, except in exceptional circumstances, a finding of dishonesty would lead to striking off.
On appeal, Mr Hassan submitted that:
- the legal advisor had misdirected the committee in relation to the Sharma case;
- the committee had formed an inappropriate view of the caution, given that cautions were normally imposed for low-level offending;
- the committee had made its decision on the basis that Mr Hassan was involved in the planning of the attempted fraud which lay behind the caution.
Leggatt J allowed the appeal and held that:
- The committee had been misdirected: the reference to Sharma suggested that there was a presumption in favour of strike off in cases of dishonesty. It was not appropriate to assume that the legal position in respect of one profession was the same as another.
- Although the CPS had considered that a caution, rather than prosecution, was appropriate, the committee must form its own view based on the evidence before it.
- In its reasons, the committee had given the impression that Mr Hassan was responsible for more than his role in the offence. There had been no evidence in the material before the committee to support such a finding.
Following the judgement, a Fitness to Practise Committee of the General Optical Council is due to hear the matter again from the sanction stage in July 2013.