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  • 21st March 2016

Solicitors Disciplinary Tribunal critical of SRA sanctions.

As reported in the Legal Futures newsletter. 

Full article:

The Solicitors Disciplinary Tribunal (SDT) has criticised the Solicitors Regulation Authority (SRA) after quashing restrictions and disciplinary sanctions the regulator had imposed on an immigration caseworker.
In the ruling – one of the few successful challenges to the SRA’s disciplinary decision-making – the tribunal also hit out at the SRA for causing problems by using the civil standard of proof when issuing sanctions given that the SDT uses the criminal standard.

It is the latest in a series of cases where the tribunal has found fault with the SRA.
An SRA adjudicator made an order under section 43 of the Solicitors Act 1974 to restrict Huseyin Arslan from working in the profession without the regulator’s permission, and under section 44, issued a rebuke and £500 fine.

He was an immigration caseworker at a firm named only as ‘DL’, who was employed for two years before setting up his own company and becoming a self-employed consultant to the firm on 50% of the profit costs he generated.

In June 2013, the SRA received a complaint of serious sexual harassment by Mr Arslan against an asylum seeker, but did not notify him of it until Christmas Eve. By the end of February 2014, the SRA concluded that there was insufficient evidence to support the complaint, but the SDT noted that neither Mr Arslan nor his firm – which had suspended him because of the complaint – were told of this for “some months”.
The SRA continued to investigate Mr Arslan, however, because of discrepencies between documents he had supplied in his defence and the original versions on the firm’s file. He was accused of creating attendance notes and altering original documents to support his case.

The adjudicator sanctioned him in January 2015 having found the allegations proved in relation to three of the five documents under review.
But on Mr Arslan’s appeal, the tribunal – having considered his account of events, what it considered failures in the SRA’s investigation and the way the adjudicator had approached the task – quashed the section 43 order and revoked the disciplinary sanctions.

It said: “The adjudicator took insufficient account of the evidence available to him, and did not fully explore the gaps in the evidence or the appellant’s explanations. There was no evidence of bias on the part of the adjudicator, but his decisions were wrong on the facts, and where indicated, in law.”
It added: “[Mr Arslan], having been accused in December 2013 of sexually harassing a vulnerable client, was not informed until August 2014, at the earliest, that that allegation was no longer being investigated due to a lack of evidence. This was despite the decision to close the matter having been taken on or around 27 February 2014.

“The tribunal observed that this was an entirely unsatisfactory situation; however, this had no bearing on their decisions. Further, the tribunal found that it was inappropriate for the SRA to operate its powers to impose a section 43 order and make disciplinary decisions under the statutory framework on the same set of underlying facts, when the use of its disciplinary powers was said to be for minor matters, whereas a section 43 order was for serious matters of misconduct.”

The SDT said this would have been the case on either the civil or criminal standard, but had decided that it would operate, as usual, on the criminal standard on the appeal, even though the SRA worked to the civil standard.