Solicitors Regulation Authority (SRA) Chief Executive Paul Philip reportedly commented recently that the SRA has no information to think that priority action is needed in respect of any of the Post Office lawyers connected to the Horizon scandal and that it was standard practice to await the outcome of a public inquiry before ‘making moves’[1].
However, there is precedent for the SRA ‘making moves’ before the end of a public inquiry. In June 2012 Alastair Brett, former in-house solicitor at the Times, sent a formal “response” to the SRA which would later form part of his evidence-in-chief at the Solicitors Disciplinary Tribunal. The Leveson Inquiry’s findings were not published until five and a half months later. Brett had been a witness in the Leveson Inquiry and, like the Post Office lawyers, had been questioned on matters directly related to the SRA investigation. Nonetheless, the SRA was able to commence its disciplinary processes.
How was this possible? Firstly, while regulators should be mindful not to prejudice other parallel investigations, there is no blanket prohibition on multiple jurisdictions considering similar issues (particularly in the absence of criminal proceedings). Secondly, the SRA simply does not require a public inquiry to investigate solicitors. The SRA has incredibly wide powers[2] to obtain documents and require people to attend for interview. Those powers can override legal professional privilege and they even extend to people and organisations who are not in the business of law, such as the Post Office. The SRA exercised some of those powers in respect of the Post Office papers approaching two years ago and has stated that it has now amassed tens of thousands of pages of evidence. Looking at the SRA’s powers, it is difficult to imagine what information the SRA would be unable obtain without the aid of the Inquiry, or indeed what the SRA would do if a public inquiry did not happen to be in place.
It should be remembered that there have also already been a number of very concerning questions raised by the Court of Appeal’s 2021[3] judgment about the manner in which the Post Office’s private criminal prosecutions were pursued. The failings of the process cannot realistically be disputed. This leaves any Post Office lawyers found to have been directly involved with these failings with a limited number of options to defend against any allegations of misconduct.
As a reminder, the Court of Appeal Post Office determination firstly remarked how extraordinary it was that in 2013 an external barrister, Simon Clarke, had to advise the Post Office on basic matters such as that failing to disclose information about the bugs in the Horizon system constituted a breach of prosecutor duties[4]. The Court also remarked that they found it even more extraordinary that Clarke then had to advise the Post Office against destroying Horizon-related emails and minutes (among other things). The Court of Appeal went on to conclude that:
“the failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court… Defendants were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation.”
To be clear, I am not saying that the findings of the Court of Appeal are conclusive proof of professional misconduct by any of the lawyers involved. In the Brett case mentioned above the barrister instructed to advocate at the hearing where the Court is said to have been misled was not aware of the key facts either. At least some of the lawyers involved in the Post Office scandal will no doubt fall into this camp, possibly all of them. There have been no findings to the contrary to date. There might be some however for whom, depending upon the evidence which comes out and given the extraordinary findings of the Court of Appeal, the best available defence would be to plead incompetence. Even then, the disciplinary sanction could still be of the gravest nature in such circumstances. Alternatively, if among the tens of thousands of documents that the SRA holds there is reliable evidence that a solicitor knowingly or recklessly perpetrated improper or dangerously flawed proceedings, then the ultimate sanction of strike off feels inevitable. The same can be said if any solicitor is found to have participated in any subsequent cover up which took place or to have lied to the Inquiry. If such evidence is already available to the SRA, then waiting for more evidence feels broadly equivalent to delaying the launch of a missile in order to find just the right pointy stick to strap onto the end of it. A disciplinary tribunal panel will only strike a solicitor off once.
So why is the SRA awaiting the outcome of the Inquiry this time around before proceeding with its investigation? Would it simply be easier for the SRA to wait until the end of the Inquiry? Undoubtedly. By that point it will be clear what each solicitor’s response will be to the questions arising from the scandal. In some cases the Inquiry’s findings may speak for themselves. It is perhaps tempting to castigate the SRA if such considerations are factored in to their decision making but I think that this would be a mistake. It is right that a regulator should avoid unnecessary duplication of work and spend its resources prudently. It’s certainly difficult to argue with the SRA’s conclusion that it will be in the best position to take action at the end of the Inquiry. The Post Office scandal is also arguably a much more complex investigation and set of factual circumstances than the phone hacking scandal. Such factors should not be discounted.
However, prudent deployment of resources and factual complexity are not the only considerations. There are also obviously good reasons to favour urgency in matters of justice. Many of the events the scandal relates to occurred over twenty years ago. With the passage of time, witnesses’ memories fade, records disappear and some people move on, sometimes in unbearably sad and tragic circumstances. In the meantime, any potential risks posed to the public by the individuals concerned would continue unabated.
The SRA can in principle impose restrictions at any time on a solicitor’s practising certificate and will often do so while it awaits the determination of more serious allegations. To date however, no such restrictions appear to have been imposed in the Post Office investigation. This is because in the SRA’s view none of the solicitors concerned presently pose sufficient risk to take action.
I must confess some concern that the SRA view appears to have been informed at least in part by the fact that the Inquiry has not contacted the SRA to recommend more urgent action[5]. Is the Inquiry really best placed to monitor those risks and to make such assessments? For those with in-depth knowledge of the solicitor regulatory regime, some of the evidence provided to the Inquiry doesn’t always make sense. The Inquiry, through no fault of their own I would add, do not appear to have picked up on certain regulatory discrepancies. In one case the evidence provided to the Inquiry appeared to be inaccurate in some parts and directly contradictory in another, with otherwise seemingly clear contemporaneous evidence being disputed in an at times quite extraordinary manner. I had to wonder what a member of the public would make of a solicitor free to practise without restriction providing evidence in such a way to an Inquiry into what is thought to be the widest miscarriage of justice in modern British history.
The SRA undoubtedly have a difficult task on their hands and awaiting the findings of the Post Office Horizon Inquiry may well be preferable. However, the excoriating Court of Appeal decision is now nearly 3 years old and there is perhaps reason to doubt the SRA’s strategy of relying on the Inquiry to identify ongoing risks posed by solicitors for it. Some members of the public may hear the evidence coming out of the Inquiry and reasonably question a wait and see approach in some instances. The profession may also wonder why a scandal genuinely capable of undermining faith in our justice system is not showing more outward signs of progress, particularly given the disciplinary action being taken by the SRA in other matters which frankly pose little risk to the public.
[1] https://www.legalfutures.co.uk/latest-news/sra-no-plans-to-act-yet-on-post-office-scandal-lawyers
[2] Section 44 of the Solicitors Act 1974
[3] https://www.judiciary.uk/wp-content/uploads/2022/07/Hamilton-Others-v-Post-Office-judgment-230421.pdf
[4] Paragraph 86 https://www.judiciary.uk/wp-content/uploads/2022/07/Hamilton-Others-v-Post-Office-judgment-230421.pdf
[5] “Mr Philip added that he would also expect the inquiry to contact the SRA if it thought action needed to be taken now.” https://www.legalfutures.co.uk/latest-news/sra-no-plans-to-act-yet-on-post-office-scandal-lawyers