Dishonest? Struck Off?

May 1, 2019

Over thirty years on from R v Ghosh (1982), the Supreme Court, in the case of Ivey v Genting (2017) has overturned the two-limb test for assessing dishonesty in criminal proceedings, creating a powerful impact on the criminal law.

What Is the New Position?

The position, as a result, is that the Court must form a view of what the defendant’s belief was of the relevant facts (but it is no longer necessary to consider whether the person concerned believed that what he did was dishonest at the time).

Where dishonesty is an issue in civil cases, in this case before a Regulator, the same legal test applies as it would in the Criminal Courts.

What Does This Change Mean?

This means that where dishonesty is in question, the fact-finding Tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts.  The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held that belief, but it is not an additional requirement that his belief must be reasonable, the question is whether it is genuinely held.

The question of whether his conduct was honest or dishonest is to be determined by the fact finder (objectively) against the standard of ordinary decent people.

Therefore, the Tribunal has to analyse whether the Respondent had a dishonest state of mind as Ivey now requires it to do.

The Tribunal will have to carry out a more straightforward, one stage test, looking at all the facts and circumstances, including the Registrant’s state of mind and then consider whether the Regulator (Prosecution) has proved dishonesty.  The point of Ivey was that he thought that what he was doing was not dishonest.  He thought he had a legitimate edge over the casino through legitimate means.  The Supreme Court said that the ordinary person would consider this to be a dishonest edge as opposed to a legitimate one and therefore dishonest.  The subjective thing was the facts – Ivey knew what those were and drew the wrong conclusion.

However, being found dishonest by your regulatory Professional Conduct/Fitness to Practice Committee does not necessarily mean that you will be “struck off” the register.

Case Examples

R (on the application of Solicitors Regulation Authority) v Imran (2015)

In the matter of R (on the application of Solicitors Regulation Authority) v Imran (2015), the Solicitors Disciplinary Tribunal (SDT) noted that the Appellant’s conduct had been spontaneous amounting only to “a single episode of very brief duration”.  This, linked to his immediate, frank and open discussions with the police and the SDT and, in this case, his immaturity, found these to be exceptional circumstances and therefore he was not removed from the register.  Dishonesty appears to lie on a spectrum and each case will depend on its own facts.  The way injustice will not occur and minor dishonesty not carry a penalty which would not be exacted in criminal proceedings is something that could be argued on behalf of any particular Registrant in the appropriate circumstances.

This has to be right in the civil arena because it is so in the criminal arena.

However, a lack of integrity appears to be a broader concept than honesty and expresses the higher standard society and professions expect from professionals.

Wingate v SRA (2018)

The case of Wingate v SRA (2018) shows a difference of approach is resolved firmly and fairly in favour of there being a clear distinction between honesty and integrity.

Neither Courts nor professional Tribunals must set unrealistically high standards.  The duty of integrity does not require professional people to be paragons of virtue.

The General Osteopathic Council (GOsC) relates integrity to the professional’s avoidance of being placed under the inappropriate influence of others or acting in such a way as to gain financially.

Is Being Struck off Inevitable?

Erasure is not necessarily inevitable and necessary in every case where dishonesty conduct by a professional practitioner has been substantiated.  There are cases where the Panel or indeed a Court of Appeal has concluded, in light of the particular elements, that a lesser sanction may suffice and it is the appropriate sanction bearing in mind the important balance of the interests of the profession and the interests of the individual.

Although it may be highly likely that dishonest conduct would lead to erasure/strike off, the Court will consider the individual’s circumstances of each case and balance the Registrant’s interests with a need to protect the public interest.

Contact Tuckers Specialist Criminal Defence Solicitors

At Tuckers, our highly respected solicitors have vast experience defending professionals  against allegations of dishonesty or criminal behaviour that call into question their ability to meet expected standards. We take a thorough, technical and robust approach, aimed at getting the best possible result for our accountancy clients. Whether you’re an individual or a firm, if you’re looking for expert legal assistance concerning a regulatory or disciplinary matter, please get in touch at the earliest opportunity, either via e-mail at suttons@tuckerssolicitors.com or call Stuart Sutton on 0808 164 6795 or 0808 169 5980.