SRA Handbook

SRA Disciplinary Procedure Rules 2011

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SRA Disciplinary Procedure Rules 2011

Rules dated 17 June 2011 commencing 6 October 2011 made by the Solicitors Regulation Authority Board, after consultation with the Solicitors Disciplinary Tribunal, under sections 31, 44D, 79 and 80 of the Solicitors Act 1974, section 9 of and paragraph 14B of Schedule 2 to the Administration of Justice Act 1985 and section 83 and Schedule 11 of the Legal Services Act 2007, with the approval of the Legal Services Board under paragraph 19 of Schedule 4 to the Legal Services Act 2007.

Part 1: General

Rule 1: Interpretation

1.1

The SRA Handbook Glossary 2012 shall apply to these rules and, unless the context otherwise requires:

(a)

all italicised terms within these rules shall be defined; and

(b)

terms within these rules shall be interpreted,

in accordance with the Glossary.

Rule 2: Scope

2.1

These rules govern the procedure for the SRA to:

(a)

give a regulated person a written rebuke;

(b)

direct a regulated person to pay a penalty;

(c)

publish details of a written rebuke or a direction to pay a penalty;

(d)

disqualify a person from acting as a HOLP or HOFA, or being a manager or employee; and

(e)

make an application to the Tribunal.

2.2

These rules shall not prevent, prohibit or restrict the exercise of any other powers or other action by the SRA.

Rule 3: Disciplinary powers

3.1

The circumstances in which the SRA may make a disciplinary decision to give a regulated person a written rebuke or to direct a regulated person to pay a penalty are when the following three conditions are met:

(a)

the first condition is that the SRA is satisfied that the act or omission by the regulated person which gives rise to the SRA finding fulfils one or more of the following in that it:

(i)

was deliberate or reckless;

(ii)

caused or had the potential to cause loss or significant inconvenience to any other person;

(iii)

was or was related to a failure or refusal to ascertain, recognise or comply with the regulated person's professional or regulatory obligations such as, but not limited to, compliance with requirements imposed by legislation or rules made pursuant to legislation, the SRA, the Law Society, the Legal Ombudsman, the Tribunal or the court;

(iv)

continued for an unreasonable period taking into account its seriousness;

(v)

persisted after the regulated person realised or should have realised that it was improper;

(vi)

misled or had the potential to mislead clients, the court or other persons, whether or not that was appreciated by the regulated person;

(vii)

affected or had the potential to affect a vulnerable person or child;

(viii)

affected or had the potential to affect a substantial, high-value or high-profile matter; or

(ix)

formed or forms part of a pattern of misconduct or other regulatory failure by the regulated person;

(b)

the second condition is that a proportionate outcome in the public interest is one or both of the following:

(i)

a written rebuke;

(ii)

a direction to pay a penalty; and

(c)

the third condition is that the act or omission by the regulated person which gives rise to the SRA finding was neither trivial nor justifiably inadvertent.

3.2

Where the SRA has decided to direct a regulated person to pay a penalty:

(a)

in considering the level of penalty to direct the SRA shall take into account the financial penalty criteria in appendix 1 to these rules; and

(b)

the penalty shall not exceed the maximum permitted by law.

3.3

The circumstances in which the SRA may make a disciplinary decision to disqualify a person from acting as a HOLP or HOFA, or being a manager or employee are when the following two conditions are met:

(a)

the SRA is satisfied that it is undesirable for the person to engage in the relevant activity or activities; and

(b)

the SRA is satisfied that disqualification is a proportionate outcome in the public interest.

3.4

In considering whether to make a disciplinary decision to disqualify a person from acting as a HOLP or HOFA, or being a manager or employee, the SRA shall take into account:

(a)

the criteria at appendix 3; and

(b)

any indicative guidance published by the SRA from time to time.

3.5

The SRA may make a disciplinary decision to publish details of a written rebuke or a direction to pay a penalty when it considers it to be in the public interest to do so in accordance with the publication criteria in appendix 2 to these rules.

3.6

Nothing in this rule shall prevent the SRA making an application to the Tribunal in accordance with rule 10.

Part 2: Practice and Procedure

Rule 4: Investigations

4.1

The parties to a discipline investigation are the SRA and the person under investigation.

4.2

The SRA may exercise any investigative or other powers at any time including those arising from:

(a)

sections 44B, 44BA, 44BB of the SA;

(b)

sections 93 and 94 of the LSA; or

(c)

rules made by the Law Society or the SRA for the production of documents, information or explanations.

4.3

Subject to rule 4.4, the SRA may disclose any information or documents (including the outcome) arising from its discipline investigation:

(a)

to an informant;

(b)

to a person who is under investigation;

(c)

to any person in order to facilitate its investigation and in particular to identify and obtain evidence, comments or information;

(d)

to other regulators, law enforcement agencies, or other persons, in the public interest.

4.4

The SRA may restrict disclosure of information to protect another person's right of confidentiality or privilege.

Rule 5: Seeking explanations

5.1

The SRA will give the person under investigation the opportunity to provide an explanation of the person's conduct.

5.2

When seeking an explanation from the person as referred to in rule 5.1 above, the SRA will warn the person that:

(a)

failure to reply to the SRA may in itself lead to disciplinary action;

(b)

the reply and other information may be disclosed to other persons pursuant to rule 4.3; and

(c)

the reply may be used by the SRA for regulatory purposes including as evidence in any investigation, decision by the SRA, or proceedings brought by or against the SRA.

5.3

The person must provide the explanation referred to in rule 5.1 or any other information within a time period specified by the SRA, which shall be no less than 14 calendar days from the request for an explanation and where no explanation or information is received within the specified time, the SRA may proceed to decision in the absence of an explanation.

Rule 6: Report stage

6.1

Before making a disciplinary decision, the SRA will prepare a report for disclosure to the person under investigation.

6.2

The report will summarise the allegations against the person under investigation, explain the supporting facts and evidence, and attach documentary evidence that the SRA considers to be relevant.

6.3

The report may also include evidence of the person's propensity to particular behaviour and a summary of the regulatory and disciplinary history of the person under investigation and of any other person that the SRA considers relevant.

6.4

The report will be provided to the person under investigation for the person to provide written comments upon it within a time period specified by the SRA, which shall be no less than 14 calendar days from the date on which the report has been sent to the person.

6.5

The person under investigation will also be invited to make submissions on whether any decision which is made by the SRA, in respect of the matters in the report, should be published. Any such submissions must be made within a time specified by the SRA, which shall be no less than 14 calendar days from the date on which the report has been sent to the person.

6.6

The report may be disclosed by the SRA to any other person with a legitimate interest in the matter to enable that person to comment upon it. Any such comments shall be disclosed to the person under investigation if they are to be included in the documents referred for adjudication.

6.7

The SRA may restrict disclosure of part of the report or all or part of the attached documents in the public interest or in the interests of efficiency and proportionality, such as:

(a)

by only providing to the person under investigation or any other person documents that are not already in their possession;

(b)

by not providing to a person other than the person under investigation the report or documents if they include information that is or might be subject to another person's right of confidentiality or privilege.

6.8

The SRA may recommend an outcome or advocate a particular position in the report or otherwise.

6.9

The report and comments received shall be referred for consideration within a reasonable time after receipt of any comments or the expiry of any time period specified for the provision of comments.

6.10

The SRA is not required to adopt the procedure in rules 5 and 6 in order to make an SRA finding or an application to the Tribunal under rule 10 below.

6.11

Where the SRA considers that it is just and in the public interest to do so the SRA may dispense with or vary the procedure and the time limits set out in rules 5 and 6.

6.12

Where the SRA dispenses with or varies the procedure or the time limits in accordance with rule 6.11, the SRA shall, so far as practicable, notify the person under investigation that it has done so.

Part 3: Decisions

Rule 7: Decisions: general

7.1

An SRA finding may be made by:

(a)

agreement between the person under investigation and the SRA;

(b)

a person duly authorised by the SRA;

(c)

a single adjudicator; or

(d)

an adjudication panel.

7.2

A disciplinary decision may be made by:

(a)

agreement between the person under investigation and the SRA;

(b)

a single adjudicator; or

(c)

an adjudication panel.

7.3

An SRA finding which does not involve a consequential disciplinary decision may incorporate or be accompanied by:

(a)

advice to the person as to the person's regulatory obligations;

(b)

a warning to the person as to future conduct.

7.4

An adjudication panel shall be properly constituted if at least two members are present.

7.5

Where an adjudication panel is comprised of three or more members, a decision may be made by a majority.

7.6

The strict rules of evidence shall not apply to decisions of the SRA.

7.7

The standard of proof shall be the civil standard.

7.8

Subject to rule 7.9, decisions will be made on consideration of the report described in rule 6.

7.9

An adjudicator or adjudication panel may give directions for the just, expeditious and effective conduct of a discipline investigation, which may include but are not limited to:

(a)

the provision of further evidence (including formal disclosure of documents which are relevant to the discipline investigation and certification that disclosure is full, frank and complete), representations or formal statements of case analogous to pleadings;

(b)

the admission of oral evidence;

(c)

where oral evidence is to be admitted, whether the evidence is to be considered in public or in private; and

(d)

the consequences of failure by a regulated person to comply with a direction, which may include the exclusion of evidence relevant to that direction from the discipline investigation.

7.10

The decision shall be made when it is sent to the person in writing. The decision will be accompanied with information in writing about any right of appeal within the SRA and any external right of appeal.

Rule 8: Decisions to impose a penalty

8.1

Where the SRA is minded to direct a regulated person to pay a penalty, it may request from that person a statement as to their financial means, and such statement shall:

(a)

include a statement of truth signed by the person or a person duly authorised to sign on their behalf; and

(b)

be provided within 14 days from the date of the request or such longer period as the SRA may specify.

8.2

Where the SRA has decided to direct a regulated person to pay a penalty, the SRA may direct that the payment of all or part of the penalty be suspended on terms to be specified by the SRA in accordance with rule 8.3.

8.3

Any decision to suspend a penalty shall specify:

(a)

the payment which is being suspended;

(b)

the period of time for which the payment is suspended; and

(c)

the circumstances in which the payment is and is not payable, which may include that it shall become payable if the SRA makes a further SRA finding in respect of the person concerned in the period for which the payment has been suspended.

8.4

Where the SRA has directed a regulated person to pay a penalty, subject to rule 8.2 above, such penalty shall be paid within a time and in the manner specified by the SRA but shall not become payable until:

(a)

the end of the period during which an appeal may be made under rules 11 or 12, section 44E of the SA or paragraph 14C of Schedule 2 to the AJA or section 96 of the LSA; or

(b)

if such an appeal is made, such time as the appeal is determined or withdrawn.

Rule 9: Decisions to disqualify, and to review a disqualification

9.1

Subject to rule 9.6, any decision to disqualify a person from acting as a HOLP or HOFA or being a manager or employee shall continue to have effect until such time as it is brought to an end:

(a)

by the SRA following a review under rule 9.4 or an internal appeal or reconsideration under rule 11 or 13; or

(b)

by the appellate body following an appeal under rule 12.

9.2

A person who has been disqualified from acting as a HOLP or HOFA, or being a manager or employee, may apply to the SRA for a review of the disqualification only:

(a)

after a period of 12 months from the date of the decision to disqualify, or after such other period as may be specified in the decision to disqualify; or

(b)

where there has been one or more prior unsuccessful applications to review the disqualification, after a period of 12 months from the date of the decision of the most recent application, or after such other period as may be specified in that decision.

9.3

Where the SRA has received an application under rule 9.2:

(a)

rule 6 shall apply save that:

(i)

before making a decision in respect of the application a report shall instead be prepared in relation to the matters leading to the decision to disqualify and any information or evidence relating to the person's conduct or behaviour in the period since that decision was made;

(ii)

rule 6.5 shall not apply and rules 6.10 to 6.12 shall apply only to the extent that they refer to the application of rule 6;

(iii)

reference to a person under investigation in rule 6 should be read as a reference to a person who has made an application under rule 9.2; and

(iv)

reference to a disciplinary decision should be read as a reference to a decision as to whether to bring a disqualification to an end in accordance with rule 9.4;

(b)

the SRA may:

(i)

exercise any investigative or other powers at any time; and

(ii)

request from the applicant documents or other information relevant to the application.

9.4

The SRA shall decide to bring a disqualification to an end if it is satisfied that:

(a)

it is no longer undesirable for the disqualified person to engage in the relevant activity or activities; and

(b)

it is proportionate and otherwise in the public interest to do so.

9.5

In considering whether to bring a disqualification to an end, the SRA shall take into account all of the circumstances including:

(a)

the criteria at appendix 3; and

(b)

any indicative guidance published by the SRA from time to time.

9.6

Any decision to disqualify a person from acting as a HOLP or HOFA or being a manager or employee may include a direction that the disqualification shall not take effect until any internal or external appeals made under rules 11 or 12 have been withdrawn or determined.

Rule 10: Applications to the Tribunal

10.1

The SRA may make an application to the Tribunal in respect of a regulated person at any time, if the SRA is satisfied that:

(a)

there is sufficient evidence to provide a realistic prospect that the application will be upheld by the Tribunal;

(b)

the allegation to be made against the person under investigation either in itself or in the light of other allegations is sufficiently serious that the Tribunal is likely to order that the person:

(i)

be struck off;

(ii)

be suspended;

(iii)

be subject to an order revoking its recognition;

(iv)

pay a penalty exceeding the maximum that can be imposed from time to time by the SRA; or

(v)

be subject to any other order that the SRA is not empowered to make; and

(c)

it is in the public interest to make the application.

10.2

The SRA will apply rule 10.1 in accordance with a code for referral to the Tribunal as promulgated by the SRA from time to time.

10.3

An application to the Tribunal under rule 10.1 may be authorised by:

(a)

agreement between the person under investigation and the SRA;

(b)

a person duly authorised by the SRA;

(c)

a single adjudicator; or

(d)

an adjudication panel.

10.4

There is no right of appeal against authorisation of an application to the Tribunal.

10.5

Subject to any contrary order of the Tribunal, the SRA may exercise any investigative or other powers at any time before a final hearing of an application at the Tribunal, including those arising from:

(a)

sections 44B, 44BA, 44BB of the SA;

(b)

rules made by the Law Society or the SRA for the production of documents, information or explanations.

10.6

Nothing in these rules shall permit the SRA to make an application to the Tribunal in respect of a person over whom the Tribunal has no jurisdiction.

Part 4: Appeals, Reviews and Reconsideration

Rule 11: Internal appeals

11.1

A person who is subject to an SRA finding or a disciplinary decision or a decision to determine an application made to the SRA under rule 9.2 may appeal under this rule against all or any part of such an SRA finding, or disciplinary decision (or both) or against all or any part of a decision to determine such an application.

11.2

There is no appeal under this rule against:

(a)

any decision other than those specified in rule 11.1;

(b)

a decision on an appeal; or

(c)

any decision which has been made by agreement with the SRA.

11.3

An appeal under this rule must be made within 14 calendar days of the date of the letter or electronic communication informing the person of the decision appealed against or within a longer time period specified by the SRA.

11.4

An appeal shall:

(a)

be in writing; and

(b)

provide reasoned arguments in support.

11.5

Appeals will be determined as follows:

(a)

where the decision was made by a person authorised by the SRA, the appeal will be decided by a single adjudicator;

(b)

where the decision was made by a single adjudicator, the appeal will be decided by an adjudication panel;

(c)

where the decision was made by an adjudication panel, the appeal will be decided by a differently constituted panel.

11.6

Appeals will be limited to a review of the decision which is being appealed, taking into account the reasoned arguments provided by the person bringing the appeal. Failure to provide reasoned arguments either at all or in sufficient or clear terms may result in summary dismissal of the appeal.

11.7

All powers available to the SRA on adjudication are exercisable on appeal and for the avoidance of doubt this means that, in relation to an appeal brought under rule 11.1, an appeal decision may include findings or sanctions more severe than those made or applied in the decision being appealed.

11.8

Nothing in these rules shall affect a person's right of appeal to the Tribunal under section 44E of the SA or paragraph 14C of Schedule 2 to the AJA or to the appellate body under section 96 of the LSA or rule 12 below.

Rule 12: Appeals to the Tribunal and the appellate body

12.1

Subject to any rules made by the appellate body or Legal Services Board, where the SRA has:

(a)

directed a licensed body, or the manager or employee of a licensed body, to pay a penalty;

(b)

decided to disqualify a person from acting as a HOLP or HOFA or from being a manager or employee;

(c)

decided not to bring a disqualification to an end following a review held under rule 9.4; or

(d)

decided to publish details of a written rebuke given to a licensed body, or the manager or employee of a licensed body;

the person subject to the direction or decision may appeal to the appellate body within the period of 28 days from the date on which the notice of the direction or decision is given to the appellant, or, if there has been a decision following an internal appeal, within the period of 28 days from the date on which the notice of that decision is given to the appellant.

12.2

Subject to any rules made by the Tribunal pursuant to section 46(9)(b) of the SA, an appeal to the Tribunal must be made within the period of 28 days from the date on which the notice of the direction or decision appealed against is given to the appellant or, if there has been a direction or decision following an internal appeal, the period of 28 days from the date on which the notice of that decision is given to the appellant.

12.3

If an appeal is made to the appellate body in relation to a direction or decision to disqualify a person from acting as a HOLP or HOFA or being a manager or employee, the appellant may apply to the appellate body for a stay of such decision pending the determination or discontinuance of the appeal.

12.4

If the appellate body imposes an order for a stay in relation to a decision in accordance with rule 12.3, the SRA shall stay the decision accordingly.

Rule 13: Reconsideration

13.1

The SRA may reconsider or rescind any decision made under these rules with the agreement of the person in respect of whom the decision was made.

13.2

In its absolute discretion the SRA may also reconsider any decision including an SRA finding, a disciplinary decision or authorisation of an application to the Tribunal when it appears that the person or panel who made the decision:

(a)

was not provided with material evidence that was available to the SRA;

(b)

was materially misled by any person;

(c)

failed to take proper account of material facts or evidence;

(d)

took into account immaterial facts or evidence;

(e)

made a material error of law;

(f)

made a decision which was otherwise irrational or procedurally unfair;

(g)

made a decision which was ultra vires; or

(h)

failed to give sufficient reasons.

13.3

The SRA, when considering the exercise of its powers under this rule, may also give directions for:

(a)

further investigations to be undertaken;

(b)

further information or explanation to be obtained from any person;

(c)

consideration of whether to authorise an application to the Tribunal;

(d)

the reconsideration of the decision to be undertaken by the original decision maker or adjudication panel or by a different decision maker or a differently constituted adjudication panel.

13.4

Nothing in these rules requires the SRA to commence or continue with any proceedings or prospective proceedings in the Tribunal or any other court or tribunal. A duly authorised person may rescind a decision to take proceedings in the Tribunal.

Part 5: Notification, Publication and Commencement

Rule 14: Notification of Disqualification decisions

14.1

Where the SRA has:

(a)

decided to disqualify a person from acting as a HOLP or HOFA, or being a manager or employee;

(b)

reached a decision following an internal appeal or reconsideration of a decision to disqualify a person from acting as a HOLP or HOFA, or being a manager or employee; or

(c)

decided that a person's disqualification to act as a HOLP or HOFA, or to be a manager or employee, should cease to apply,

it shall, as soon as reasonably practicable, notify the Legal Services Board of the decision reached.

Rule 15: Publication of decisions

15.1

This rule governs the publication of details of a written rebuke or a direction to pay a penalty.

15.2

Subject to rule 15.4, publication in accordance with this rule:

(a)

will include a short statement of the disciplinary decision including brief details of its factual basis and the reasons for the decision;

(b)

will identify the person who has been subject to a relevant disciplinary decision;

(c)

will take reasonable steps to avoid the publication of information relating to other identifiable persons;

(d)

will provide the practising details of the person who has been subject to a relevant disciplinary decision at the time of the matters giving rise to the decision and at the time of decision if different;

(e)

will be in such form as the SRA may from time to time decide;

(f)

may include provision of a copy of the publishable information upon request by any person;

(g)

will be made promptly after the decision has been made, provided that the SRA may delay or withhold publication in the public interest.

15.3

The SRA may vary or dispense with any of the requirements in rule 15.2 in the public interest.

15.4

The SRA may not publish details of a written rebuke or a direction to pay a penalty:

(a)

during the period in which an appeal may be made under rules 11 or 12 above, section 44E of the SA, paragraph 14C of Schedule 2 to the AJA or section 96 of the LSA; or

(b)

if such an appeal has been made, until such time as it is determined or withdrawn.

15.5

For the avoidance of doubt, the SRA may also publish information about other decisions or investigations.

Rule 16: Application and repeal

16.1

Save for those matters to which the SRA Disciplinary Procedure Rules 2010 (the 2010 rules) apply in accordance with rule 16.2, these rules apply to acts or omissions whenever they occur, unless occurring wholly before 1 June 2010.

16.2

These rules repeal the 2010 rules, save that the 2010 rules shall continue to apply to matters in which an explanation has been sought or a report issued in accordance with rule 5 or 6 of those rules, or in which an SRA finding or application to the Tribunal has been made without an explanation having been sought or a report issued in accordance with rule 6(11) of those rules.

Rule 17: Transitional Provisions

17.1

These rules shall not apply to licensed bodies until such time as the Society is designated as a licensing authority under Part 1 of Schedule 10 to the LSA and all definitions shall be construed accordingly.

17.2

The rules shall not apply to the exercise of disciplinary powers in relation to:

(a)

licensed bodies , or managers or employees of licensed bodies; or

(b)

former managers or employees of licensed bodies;

until such time as the Society is designated as a licensing authority under Part 1 of Schedule 10 to the LSA.

17.3

In these rules references in the preamble to the rules being made under section 83 and Schedule 11 of the Legal Services Act 2007 shall have no effect until such time as the Law Society is designated as a licensing authority under Part 1 of Schedule 10 to the Legal Services Act 2007.

Appendix 1

Financial Penalty Criteria (Rule 3.2)

1

In this appendix, the term "misconduct" shall mean conduct or behaviour resulting in an SRA finding.

2

In deciding the amount of a financial penalty, the SRA will take into account all relevant circumstances, including that any financial penalty should, so far as practicable:

(a)

be proportionate to the misconduct;

(b)

be proportionate to any harm done;

(c)

be of an amount that is likely to deter repetition of the misconduct by the person directed to pay the penalty and to deter misconduct by others;

(d)

eliminate any financial gain or other benefit obtained as a direct or indirect consequence of the misconduct;

(e)

be proportionate to the means of the person directed to pay it;

(f)

take into account the intent, recklessness or neglect that led to the misconduct;

(g)

take into account any mitigating or aggravating circumstances; and

(h)

take into account indicative guidance published by the SRA from time to time.

3

Aggravating circumstances include:

(a)

failure to correct, or delay in correcting, any harm caused as a result of the misconduct;

(b)

failure to co-operate with the SRA investigation or the investigation of any other regulator or ombudsman;

(c)

failure to admit, or delay in admitting, any misconduct;

(d)

that the regulated person has been the subject of other findings by the SRA, the Tribunal, or any other approved regulator or the appellate body.

4

Mitigating circumstances include:

(a)

prompt correction of any harm caused as a result of the misconduct;

(b)

prompt admission of any misconduct;

(c)

taking steps to prevent future misconduct.

5

When considering a regulated person's means the SRA shall take into account:

(a)

all relevant information of which the SRA is aware; and

(b)

any statement of means, verified by a statement of truth, which has been provided by the regulated person.

6

The SRA may take into account in considering a regulated person's means any failure to provide a statement of means following a reasonable request by the SRA to do so under rule 8(1).

Appendix 2

Publication Criteria (Rule 3.5)

1

In deciding whether or not to publish a decision to give a person a written rebuke or direct that person to pay a penalty, the SRA will take into account all relevant circumstances including the following factors when relevant.

2

Each case will be decided on its own merits.

3

The following support a decision to publish:

(a)

the circumstances leading to the rebuke or penalty, or the rebuke or penalty itself, are matters of legitimate public concern or interest;

(b)

the importance of transparency in the regulatory and disciplinary process;

(c)

the existence or details of the rebuke or penalty will or might be relevant to a client or prospective client of a person who has been subject to a relevant disciplinary decision in deciding whether to instruct or continue to instruct that person, or as to the instructions to be given;

(d)

the existence or details of the rebuke or penalty will or might be relevant as to how any other person will deal with a person who has been subject to a relevant disciplinary decision;

(e)

the seriousness of the finding against the person;

(f)

the rebuke or penalty has been given to a person who has previously been the subject of disciplinary or regulatory decisions whether private or published;

(g)

the rebuke or penalty arises from facts that affected or may affect or have affected a number of clients or other persons;

(h)

the rebuke or penalty arises from facts that relate to the administration of justice.

4

The following support a decision not to publish:

(a)

publication would disclose a person's confidential or legally privileged information;

(b)

publication would disclose a person's confidential medical condition or treatment;

(c)

publication may prejudice legal proceedings or legal, regulatory or disciplinary investigations;

(d)

publication would involve a significant risk of breaching a person's rights under Article 8 of the European Convention on Human Rights;

(e)

in all the circumstances the impact of publication on the individual or the firm would be disproportionate.

5

In deciding whether to publish, the SRA may also take into account:

(a)

the overall disciplinary and regulatory history of another person when relevant;

(b)

whether any disciplinary or regulatory action by another body is being or has been taken against the person who has been subject to a relevant disciplinary decision.

6

The factors set out above are not exhaustive and do not prevent the SRA from taking into account other factors that it considers to be relevant.

7

The SRA will from time to time publish indicative guidance about the application of these criteria.

Appendix 3

Disqualification and Disqualification Review Criteria (Rules 3.4 and 9.5)

1

In this appendix, the term "misconduct" shall mean conduct or behaviour resulting in an SRA finding.

2

This criteria is to be used in conjunction with the tests set out at rules 3.3 and 9.4.

3

In deciding whether to disqualify a person or to bring a disqualification to an end, the SRA will take into account all relevant circumstances, including that the aim of any disqualification should be:

(a)

for the disqualification to deter the regulated person or other persons from engaging in similar conduct in the future; or

(b)

to protect the public from a regulated person.

4

Where there has been misconduct, the following support a decision to disqualify:

(a)

the conduct of the regulated person has caused significant loss or harm;

(b)

the regulated person has abused a position of trust;

(c)

the conduct of the regulated person has caused harm to or to the interests of a vulnerable person;

(d)

the conduct of the regulated person was motivated by any form of discrimination;

(e)

the conduct was deliberate, pre-meditated, repeated or reckless;

(f)

the conduct has put the public confidence in the regulation of the profession at risk; or

(g)

the conduct of the regulated person indicates that the person is unsuitable for the role being undertaken.

5

Where there has been misconduct, the following support a decision not to disqualify:

(a)

the conduct was committed as a result of a genuine mistake or misunderstanding;

(b)

the regulated person has cooperated fully with the SRA;

(c)

the conduct was trivial; or

(d)

there is a low likelihood of repetition of the conduct.

6

In deciding the appropriate duration of a disqualification without review in accordance with rule 9.2, the SRA shall take account of the factors set out at paragraphs 4 and 5 above.

7

The following, collectively, support a decision to bring a disqualification to an end:

(a)

the disqualification has achieved any intended deterrent effect;

(b)

to do so would not present a risk to the public, which could include consideration of any complete and demonstrable rehabilitation on the part of the regulated person; and

(c)

to do so would not have an adverse impact upon the public confidence in the regulation of the profession.

8

An absence of any one of the factors set out at paragraph 7(a)-(c) would support a decision not to bring a disqualification to an end.

9

The factors set out above are not exhaustive and do not prevent the SRA from taking into account other factors that it considers to be relevant.