West Law Report

L v LAW SOCIETY

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

Court of Appeal (Civil Division) Sir Anthony Clarke MR July 7, 2008 Civil appeals – Law Society – Members – Private hearings – Solicitors – Spent convictions – Students – Appeal against revocation of Law Society membership – existence of spent convictions – Appeal to be heard in public – Rehabilitation of Offenders Act 1974 – r. 39 2(3)(c) Civil Procedure Rules 1998 – Art. 8 European Convention on Human Rights 1950 – s. 7 Data Protection Act 1998 – Art. 6 European Convention on Human Rights 1950 – Rehabilitation of Offenders act 1974 (Exceptions) Order 1975 – s. 4(2) Rehabilitation of Offenders Act 1974 – Sch. 3 para. 1 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 – S. 4(3)(b) Rehabilitation of Offenders Act 1974

Last Updated: 6:40PM BST 23 Jul 2008

FACTS

The court was required to determine whether or not an appeal brought by the appellant (L) under the Master of the Rolls (Appeals and Applications) Regulations 2001 against a decision of the respondent Law Society to revoke his membership should be heard in private. L had been admitted as a student member of the Law Society following a consideration of his background and his previous convictions by the Solicitors’ Regulation Agency. Following a number of incidents that involved L but which did not relate to any criminality, the Law Society revisited its decision and revoked his membership. The Law Society did not consent to the appeal being heard in private and it was therefore for L to demonstrate that there were exceptional circumstances within the meaning of r. 10 of the 2001 Regulations justifying a hearing in private. L submitted that the appeal should be heard in private because (1) it involved consideration of a number of convictions that were classified as spent under the Rehabilitation of Offenders Act 1974; (2) his spent convictions were analogous to confidential information under the CPR r. 39. 2(3)(c); (3) the Law Society had infringed his rights under the European Convention on Human Rights 1950 art. 8 when it required him to use his own subject access rights under the Data Protection Act 1998 s. 7 to obtain copies of his confidential police records; (4) a public hearing would result in a loss of his livelihood and would infringe his rights under art. 6 of the Convention.

ISSUE

Whether or not the appeal brought by L under the Master of the Rolls (Appeals and Applications) Regulations 2001 against a decision of the Law Society to revoke his membership should be heard in private.

HELD (application refused)

(1) By virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, the protection provided by s. 4(2) of the 1974 Act did not apply to questions posed to individuals in order to assess their suitability for admission to the solicitors’ profession. L could therefore be required to disclose to the Law Society the nature and existence of any spent convictions and to answer questions relating to those convictions during the admissions process. Moreover, by virtue of Sch. 3 art. 5 para. 1 of the 1975 Order, the exemption from protection extended to disciplinary proceedings and to the instant appeal. That was not to say that L had entirely lost the protection of the 1974 Act; he would not be prejudiced should he wish in future to bring defamation proceedings and his employment status was protected. In those circumstances the existence of spent convictions did not amount to exceptional circumstances for the purposes of r. 10 of the 2001 Regulations.

(2) L’s spent convictions were not confidential information. Firstly, the 1974 Act did not render spent convictions confidential, it simply put in place a regime that protected an individual from being prejudiced by the existence of such convictions. Secondly, a policy statement of the SRA guaranteeing that it would, in the context of carrying out character and suitability assessments, treat information supplied to it as confidential did not apply to the instant proceedings. The policy applied to the admissions process. In hearing appeals against the cancellation of a student’s enrolment, the Master of the Rolls was sitting as an independent tribunal and was not sitting as an SRA Adjudicator. The proceedings arose outwith and independently of the SRA’s admissions process and the guidelines applicable to it.

(3) The fact that L had been required to use his own subject access rights to obtain copies of his confidential police records was a matter for the SRA’s internal procedures and did not help determine whether or not the appeal should be held in private.

(4) Given the protection afforded by s. 4(3)(b) of the 1974 Act, a public hearing would not infringe L’s rights under art. 6 of the Convention. Though it might have an adverse effect on the work he did, that would not amount to a loss of livelihood. Nor was it necessary in the public interest to hear the appeal in private. The general rule that, in the absence of exceptional circumstances, appeals should be heard in public was justified in the case of all convictions for a number of reasons. Firstly, they were convictions relevant to an application to join a regulated profession, the members of which had to be capable of being trusted implicitly. Part of ensuring that public confidence was maintained was that proceedings such as the instant ones were held in public. Second, entry to a regulated profession carried with it the potential that spent convictions would enter the public domain. Finally, L could not reasonably suggest that he would be deterred from pursing his appeal were it to be heard in public, Scott (aka Morgan) v Scott [1913] AC 417 considered. His distress was not sufficient to require the appeal to be heard in private.

The appellant in person. Iain Millar (instructed by Bevan Brittan) for the respondent.

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