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Neutral Citation Number : [2008] EWCA Civ 811 BEFORE THE MASTER OF THE ROLLS Case Number (No: 13 of 2008)
IN THE MATTER OF THE SOLICITORS ACT 1974
AND IN THE MATTER OF THE MASTER OF THE ROLLS
(APPEALS AND APPLICATIONS) REGULATIONS 2001
AND IN THE MATTER OF:
‘L’
and
THE LAW SOCIETY
L appeared in person. Mr Iain Miller of Bevan Brittan represented the Law Society
JUDGMENT
Introduction
- This application raises the question whether or not an appeal should be heard in private. It arises in the context of a substantive appeal brought under the Master of the Rolls (Appeals and Applications) Regulations 2001 (the 2001 Regulations). The substantive appeal arises out of an appeal from a decision of the Law Society to revoke student membership of the Society on the grounds that the student member does not have the necessary character or suitability to be a student member or ultimately to be permitted admission to the Solicitors’ roll. The appellant had originally been admitted as a student member of the Law Society in 2002, following a consideration by a Law Society Adjudicator of his background including his previous convictions. The Law Society revisited its decision in 2007 following a number of incidents which involved the appellant but did not relate to any criminality.
- The appellant submits that the substantive appeal be heard in private on the ground that it involves consideration of a number of criminal convictions which are now classified as spent under the terms of the Rehabilitation of Offenders Act 1974. I directed the present application to be heard in private because to have done otherwise would have defeated the object of the hearing. It is also unnecessary for present purposes to identify either the appellant or his past convictions. This judgment will be made public in this anonymised form.
- Rule 10 of the 2001 Regulations provides the general rule which applies to proceedings brought under those Regulations. Rule 10 states that the hearing shall be in public unless:
“(10)... (a) all parties to the application or appeal agree that all or part of the hearing shall be in private and the Master of the Rolls considers that this will not be contrary to the interests of justice; or (b) the Master of the Rolls considers that there are exceptional circumstances which justify hearing all or part of the application or appeal in private.”
- He also relies on Article 6 of the ECHR and contends that a public hearing would result in the loss of his livelihood. He further submits that the documents were confidential documents, a point he submits was emphasised by the Law Society’s own guidance. He submits that that guidance guaranteed confidentiality during the admissions process which according to the guidance includes the appeals process and that it applies to the present appeal because the Master of the Rolls sits as a Law Society, or now as a Solicitors Regulation Authority (SRA), Adjudicator and is subject to their policies and guidance.
- The Appellant also relies upon a number of other documents in support of this application. In those documents he refers, in addition to the submissions already noted, to the powers contained in section 11 of the Contempt of Court Act 1981 and section 8 (1) of the Magistrates Court Act 1980 to impose reporting restrictions on various hearings and to anonymise proceedings.
- The Law Society’s stance can be put more succinctly. It submits that the general common law principle is that hearings should be in public, although this is subject to exceptions, for which see Scott v Scott [1913] AC 417 and R (Pelling) v Bow County Court (CO 4774/1999) (2000 unreported). Further general guidance as to when exceptions can be made to the general rule is, it is submitted to be found in both CPR 39.2 and Article 6 (1) ECHR.
- As to the 1974 Act the Law Society submits that it does not protect the appellant because applications for admission as a solicitor are excluded due to the effect of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the 1975 Order). That Order ensures that, so far as matters outside the admissions process and these proceedings are concerned the appellant is still protected by the terms of the 1974 Act.
- The Law Society also submits that the thrust of the appellant’s submissions is that the 1974 Act in some way renders his spent convictions confidential. This, it is submitted is to give too wide an effect to the protection afforded by the 1974 Act. It submits that it is a fundamental aspect of confidential information that is not and has never been in the public domain. This cannot apply to prior convictions; especially where, as in this case, at least one of them has been reported in the press. It is submitted that it is for this reason that the 1974 Act does not create a right under Article 8 of the ECHR: see R (Pearson) v DVLA [2002] EWHC 2482 (Admin).
- Finally, the Law Society submits that the appellant’s submissions relate to his privacy and a desire not publicly to draw attention to his convictions. It is submitted that these reasons do not amount to exceptional circumstances justifying holding the hearing in private. It submits in the alternative that if there is any force in his submissions they can be met by anonymising the judgment.
Discussion
The 1974 Act
- The fundamental issue arising for decision is whether appellate proceedings arising from a decision by the Law Society, or the SRA, concerning admission as a student member of the Law Society ought to be held in private where the individual seeking admission has spent criminal convictions. Does the existence of spent convictions amount to exceptional circumstances for the purposes of these proceedings? More generally, does it amount to exceptional circumstances for the purposes of Rule 10 of the 2001 Regulations, which govern these and other appellate proceedings referable to the Master of the Rolls concerning student members of the Law Society, solicitors and former solicitors?
- I consider first the 1974 Act. The purpose of the Act is, as it is described in volume 11(4), para 2113 of Halsbury’s Laws, ‘to place a rehabilitated person in the position that he would have occupied had he not committed the particular offence.’ This is achieved, inter alia , through section 4(2) of the 1974 Act which provides that, subject to section 4(4):
“... where a question seeking information with respect to a person’s previous convictions, offences, conduct or circumstances is put to him ore to any other person otherwise than in proceedings before a judicial authority – (a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and (b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.”
The exemption thus covers, for instance, appeals to the Master of the Rolls arising out of the admission process or appeals to the Solicitors Disciplinary Tribunal arising out of disciplinary proceedings. It thus extends to the present appeal.
- This analysis shows that, for the purposes of his application for admission and for the purposes of the present appeal from the decision taken in that admission process the appellant is not protected by the terms of the 1974 Act. He is in the same position as an individual seeking admission or an appellant challenging a decision arising out of that process who has unspent convictions. He is not therefore to be treated as if he had not committed the relevant offences.
- He does not however entirely lose the protection of the 1974 Act. The exemption provided by the 1975 Order only applies to that process and these proceedings. The appellant otherwise has the benefit of the 1974 Act. It is not therefore correct to suggest, as the appellant submits, that disclosure of his convictions if the present appeal is held in public would prejudice him in respect of any future potential defamation proceedings he might wish to pursue in light of adverse media reportage. The ability to bring defamation proceedings where there are spent convictions is specifically provided for by section 8 of the 1974 Act, which, as it is explained in Herbage v Pressdram Ltd & Others [1984] 2 ALL ER 769 (CA), simply modifies the law as to defamation so that the real issue in such cases where there are spent convictions is whether or not any publication of details of those convictions was malicious. Equally, the appellant’s disclosure of his spent conviction cannot adversely effect his present employment status because he continues to be protected by the terms of section 4 (3) (b) of the 1974 Act, which provides that, subject to section 4 (4):
“a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession or employment, or for prejudicing him in any occupation or employment.”
- Thus notwithstanding disclosure of his spent convictions as a consequence of an open hearing and public judgment in the present proceedings, the appellant generally retains the protection of the 1974 Act. As such, he cannot properly be said to be prejudiced by the present substantive hearing being held in public with a public
judgment to follow. In the circumstances I cannot accept that the existence of spent convictions amounts to exceptional circumstances which would justify a departure from the general rule set out within Regulation 10 of the 2001 Regulations.
- The appellant relies however on a number of other points, which he submits give rise to exceptional circumstances. The first is that the evidence of his spent convictions is confidential information and that, by analogy with CPR 39.2(3)(c) it ought to be protected by means of a hearing in private. While the CPR does not govern the present proceedings, because they are not civil proceedings for the purpose of the CPR, it is submitted and (I would accept) that the specific examples given in rule 39. provide examples of when proceedings such as the present could be held in private. I note however that CPR 39.2(3) only elaborates a number of circumstances where a court ‘may’ hold a hearing in private. The court in civil proceedings retains a discretion to hold a hearing in public notwithstanding one of the specified circumstances being satisfied. A similar discretion is provided by Rule 10 of the 2001 Regulations. I accept therefore that where publicity would, as in the present preliminary application, defeat the object of the hearing, or where it involves confidential information, exceptional circumstances arise which may justify holding the hearing in private.
- The question therefore arises whether the details of the appellant’s spent convictions are confidential information. The first of the two bases on which he submits that they are confidential is that the protection afforded by the 1974 Act renders them confidential. I cannot accept that this is correct. The contention that the 1974 Act renders spent convictions confidential misunderstands the Act’s intention and its ambit. If it were to render spent convictions confidential it would have (as it were) to seal that part of an individual’s criminal record such that no-one except perhaps the individual concerned had access to it. It does not do so.
- It would also have to render private convictions that were matters of public record and may well have been, as in this case, reported in the press. Notwithstanding the obvious practical difficulty of rendering secret a public judgment which had been freely and properly reported in the press, the Act does not purport to have that effect and does not, in my opinion, do so. It simply ensures, for instance, that an individual cannot be questioned about such convictions in defined contexts or be prejudiced if details of the spent convictions come to the attention of a current employer during the course of that employment. As Maurice Kay J held in R (Pearson) v DVLA [2002]
through a subject access request made under section 7 of the Data Protection Act
- It is therefore the case that information as to the appellant’s convictions was confidential information so far as the admissions process was concerned and that an applicant for admission would therefore have the legitimate expectation that material submitted detailing past convictions, whether spent or unspent, would be treated by the SRA as confidential and that such material would be destroyed as soon as the admission process, including any appeal, was concluded.
- The appellant submits that that confidentiality statement encompasses the present proceedings, which it is submitted form part of the SRA’s admissions process, albeit as an appeal stage of that process. It is submitted that the jurisdiction exercised by the Master of the Rolls on the substantive appeal is covered by the confidentiality statement on the basis that he sits as an SRA Adjudicator. On this basis it is submitted that exceptional circumstances arise justifying holding the hearing in private and requiring the judgment to be a closed judgment because information as to convictions is confidential material.
- This submission is however based on a misconception as to the nature of the present appeal and the Master of the Rolls’ jurisdiction. The admissions process, relevant to the present case is governed by Regulations 5 and 6 of the Training Regulations 1990 (the 1990 Regulations). Regulation 5 requires an individual to obtain a certificate of enrolment prior to attending, amongst other things, a Legal Practice Course. A certificate of enrolment is issued to those who are accepted as student members of the Law Society having satisfied the requirements of Regulation 6 of the 1990 Regulations. Those requirements include an assessment of character and suitability. I should note that the Regulations refer to the Law Society, albeit this function is now formally delegated to the SRA pending implement of the structural changes effected by the Legal Services Act 2007. References to the Law Society in this context should be read as references to the SRA, mutatis mutandis. The Law Society can refuse to issue a certificate of enrolment to individuals who fail to satisfy it that they have the requisite character and suitability. Following such a refusal Regulation 6(4)(i) permits an individual to seek an internal review of the decision i.e., a review conducted by the Law Society. If that review fails, an appeal of the Law Society’s decision lies to the Master of the Rolls under Regulation 6(4)(ii).
- Where an individual has been admitted as a student member and granted a certificate of enrolment, they remain subject to scrutiny by the Law Society: see Jideofo v The
Law Society [2007] EW Misc 3 (EWLS) at [6] – [7]. That scrutiny role arises under Regulation 32(2) of the 1990 Regulations which specifies that if the Law Society at any time is not satisfied that a student member, an unadmitted person, does not have the requisite character and suitability it can, amongst other things, cancel enrolment: see Regulation 32(2)(i). That is what happened in the present case. An individual whose enrolment is cancelled in this way can in the first instance see an internal review of that decision: Regulation 32(3)(i). If that internal review fails an appeal lies to the Master of the Rolls under Regulation 32(3)(ii). The present substantive appeal is brought under Regulation 32(3)(ii).
- The jurisdiction granted to the Master of the Rolls under the 1990 Regulations is akin to the jurisdiction created by sections 13 and 13A of the Solicitors Act 1974, in respect of appeals against decisions of the Law Society which impose conditions on solicitor’s practising certificates, or under section 49 of that Act, which permits appeals in limited circumstances from decisions of the Solicitors Disciplinary Tribunal to be brought before the Master of the Rolls. This is an appellate and supervisory jurisdiction exercised by the Master of the Rolls sitting as an independent tribunal; that is a tribunal independent of the Law Society: Thompson v the Law Society [2004] EWCA Civ 167; [2004] 1 WLR 2522 at [90] – [92], where I said in the Court of Appeal:
“90. Section 12 of the [1974] Act confers a discretion on the Law Society to impose such conditions in certain defined circumstances… The expression ‘vesting a discretion’ simply means that the solicitor has been notified as provided in section 12(1)(e) which permits the Law Society to consider whether to impose a condition at the next renewal of the practising certificate.
- The decision to vest a discretion does not therefore itself determine any of the solicitor’s legal rights. Moreover, if the Law Society should subsequently impose a condition on the certificate, the solicitor has a right of appeal to the Master of the Rolls under section 13(A)(6) of the Act. The Master of the Rolls conducts such appeals under the Master of the Rolls (Applications and Appeals) Regulations 2001 which provide (subject to very limited exceptions) that the hearings of such appeals shall be in public. So far as I can see, those rules are entirely compatible with Article 6(1) of the Convention.
- In these circumstances it is to my mind clear that the decision to ‘vest a discretion’ was not a determination of the claimant’s civil rights and, in any event, viewed as a whole, the process does not infringe his Convention rights in this regard.”
subsequent appeal from a decision of the Law Society should be held in private. That being said, the appellant says (and I accept), that the spent convictions would not appear on a CRB check because of their age. In those circumstances it seems to me perfectly reasonable for the SRA to require evidence from an individual which details those spent convictions rather than to rely on a CRB check which would not satisfy the requirement of complete disclosure of all convictions, whether spent or unspent. In any event I cannot see how the method through which the evidence was obtained can give rise to exceptional circumstances justifying holding the substantive appeal in private.
- The appellant also relies on Article 6(1) of the ECHR, on the ground that a public hearing would result in loss of his livelihood. Given the protection afforded by section 4(3)(b) of the 1974 Act I cannot accept that a public hearing would have that effect. It might have an adverse effect on other work he carries out i.e., in respect of television documentary work additional to his employment, but that would not amount to a loss of livelihood. So far as Article 6(1) of the ECHR is concerned it also provides that hearings may be held in private where “the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” Similar principles are to be found in CPR 39.2(c) and the decision of the House of Lords in Scott v Scott [1913] AC 417. The same principle underpins the nature of the jurisdiction set out in Regulation 10 of the 2001 Regulations.
- The question then becomes one which focuses on whether protecting the appellant’s private life requires the appeal to be held in private or, in the alternative, whether holding the appeal in private is strictly necessary because publicity would prejudice the interests of justice.
- I cannot accept that it is necessary in the public interest to hold the appeal in private. The general rule that, in the absence of exceptional circumstances, appeals should be heard in public is in my view justified in the case of all convictions, spent and unspent, which for present purposes are equivalent, for the following reasons.
- First, they are convictions relevant to an application to join a regulated profession, the members of which, as I have noted earlier must be capable of being trusted to the ends of the earth. In Bolton Sir Thomas Bingham MR said this about the nature of the
profession in the context of striking off the roll or readmitting those previously struck off at pages 518-9:
“To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.”
- Part of ensuring that public confidence is maintained is that proceedings such as this, or such as those which take place in the Solicitors Disciplinary Tribunal in respect of solicitors who seek readmission following a strike off, are held in public. Public confidence in the profession and its reputation is to my mind protected by hearings such as this being held in public. It not only ensures that matters are open to proper scrutiny such that the proper administration of justice in this domestic setting is done, but it enables the public to see what steps are taken to ensure that only those who it can properly be said have a suitable character are admitted into the profession. Equally, where an individual is in the position that they are required to justify in the context of restoration to the roll proceedings and in situations such as they present that they have the requisite character and suitability, they ought to be able to hold their head up high and publicly acknowledge their past misdemeanours. If they cannot do so, how can they expect a right minded reasonable member of the public who was aware of their past misdemeanours properly to conclude that they were genuinely capable of being trusted to the ends of the earth? Such trust once lost must be regained; it cannot be properly regained whilst the basis on which it was lost is deliberately shrouded in secrecy in restoration proceedings or proceedings such as these.
- Secondly, it seems to me that an individual with prior convictions cannot rely on the exception to publicity which arises from the interest of his private life per Article 6(1) of the ECHR. Such an individual has embarked on a process of entry into a regulated profession. That process is one which carries with it the potential that those convictions, whether spent or unspent, may as part of that process come into the public domain. Again as Sir Thomas Bingham MR put it in Bolton at 519:
must take all relevant circumstances into account, including both the previous convictions and the view of the Adjudicator which led to the decision in 2002. These are all matters for the substantive appeal.
Conclusion
- In all the circumstances I conclude that the existence of prior convictions, either spent or unspent, is not of itself sufficient to amount to an exceptional circumstance that would justify holding that appeals under the 2001 Regulations should be held in private. Nor are there any of the other considerations advanced the appellant. For the same reasons I am not at present persuaded that the judgment I deliver on the substantive appeal be anonymised.
- For these reasons my order is in these terms:
(1) the application is refused;
(2) the transcript of the proceedings in respect of this preliminary issue be closed;
(3) the judgment on the preliminary issue be an open anonymised judgment;
(4) No party or other individual is to take any steps which could lead to the identification of L without permission of the master of the Rolls
