As a matter of general principle, the SRA can decide not to pursue misconduct by a person on grounds of proportionality, including in response to relevant mitigation.
Appropriate co-operation with the SRA by a potential witness in a wider SRA investigation (i.e. an investigation into persons other than the potential witness) mitigates misconduct by that person. Co-operation by a person regulated by the SRA, who may themselves have been involved in misconduct, could therefore result in a decision that, for example:
- no action needs to be taken against the potential witness in respect of their own misconduct;
- any agreed sanction can be reduced from what would otherwise have been imposed in the absence of co-operation (which may include the level of any fine imposed); or
- where a sanction is to be considered by another body (such as the Solicitors Disciplinary Tribunal), the SRA acknowledges the assistance provided and that it constitutes mitigation.
Each case will turn on its own facts but relevant factors which the SRA will take into account in determining a regulatory outcome in respect of a co-operative witness include:
- a. how promptly the potential witness has disclosed the alleged misconduct to the SRA - this provides greater mitigation than delayed disclosure;
- b. whether the witness has made the disclosure on his or her own initiative (rather than in response to an investigation) - this provides greater mitigation than disclosure prompted by the likely uncovering of the behaviour by other means;
- c. whether the witness has provided important evidence for the investigation of serious misconduct;
- d. whether the witness has made frank and prompt disclosure of his or her own involvement in the alleged misconduct;
- e. whether, in a situation where there are concerns about a witness’ fitness to practise, the outcome would adequately address risks posed to consumers and the public interest. For example, if a witness’ involvement has been serious, whether he or she agrees to removal from the Roll of Solicitors or another form of removal from practice such as disqualification and enters into a formal agreement to that effect;
- f. whether the witness provides or contributes to redress for the victims of the misconduct as appropriate in the overall context – a regulatory agreement with a witness would be extremely unlikely if the witness has retained benefits arising from misconduct;
- g. whether the witness has paid any financial penalty or costs due to the SRA or has entered into an arrangement to do so (and abides by that arrangement).
Mitigation may be particularly substantial if the witness is responsible for the behaviour of concern having been brought to the attention of the SRA for the first time or to provide credible evidence of it. This could include a report which is made via a firm’s Compliance Officer for Legal Practice (COLP) or Compliance Officer for Finance and Administration (COFA).
However, it should be remembered that persons regulated by the SRA – firms, managers and employees - already have an obligation to report misconduct. For example, outcomes 10.3 and 10.4 of the SRA Code of Conduct 2011 require that:
- O(10.3) you notify the SRA promptly of any material changes to relevant information about you including serious financial difficulty, action taken against you by another regulator and serious failure to comply with or achieve the Principles, rules, outcomes and other requirements of the Handbook; and
- O(10.4) you report to the SRA promptly, serious misconduct by any person or firm authorised by the SRA, or any employee, manager or owner of any such firm (taking into account, where necessary, your duty of confidentiality to your client).
While there should not be a material delay in a report being made to the SRA, you may also have an obligation to report certain matters internally within your business.
The SRA may approach a potential witness on its own initiative or enter into discussions at the instigation of the witness. The SRA is under no obligation to enter into discussions or reach any agreement.
Discussions will be ‘without prejudice’ as between the SRA and the potential witness, save that the SRA may have to act upon factual information representing a risk to the public or the regulatory objectives of the Legal Services Act 2007.
Subject to any potential claim to public interest immunity2, the agreement reached with the witness will be disclosable to a respondent (i.e. another person being investigated by the SRA in respect of whom the evidence relates) if evidence from the witness forms part of the SRA case before any court, tribunal or in the SRA's internal decision-making processes. Reports which are made to the SRA on a confidential basis do not generally involve the more formal co-operation at which this policy is aimed and so will not normally be appropriate for a co-operation agreement. The SRA's view is that communications with the witness prior to and leading up to the agreement will usually be irrelevant and should not be disclosable to any other party, subject to orders of the court or a relevant tribunal.
The potential witness must make full and frank disclosure to the SRA of alleged misconduct of which he or she is aware and in particular of his or her involvement in misconduct. If it is subsequently discovered that full and frank disclosure has not been made, the SRA may re-investigate and/or take action against the potential witness for any original misconduct or consequential misconduct (such as misleading the SRA).
The SRA will not generally commit to any outcome or likely outcome until satisfied that it is in full possession of all relevant facts including the involvement of the potential witness in the misconduct and how that relates to the involvement of others (such as the identity of the ‘ringleader’ or any person coercing others into the behaviour in question).
The potential witness must provide continued and good faith co-operation including giving evidence where necessary. Failure to co-operate may also result in the SRA reinvestigating or taking action as set out above.
The potential witness will generally be required to enter into a regulatory settlement agreement which will include a full admission of any misconduct and a declaration that full disclosure has been made (with consequential acknowledgment of potential action if disclosure has not been full).
1. This is a statement of policy and not a formal document to be interpreted closely as if it were a rule or delegated legislation.
2. Public interest immunity essentially refers to the right to withhold disclosure of information, for example, on the basis that to disclose it would be harmful to the public interest