L v The Law Society

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:

The Law Society does not consent to the substantive appeal in this case being heard in private. It is therefore for the appellant to demonstrate that there are exceptional circumstances which would justify the appeal or aspects of it being heard in private.

The appellant has made a number of submissions both in writing submitted before and after the hearing of this application and orally at the hearing itself. He relies in particular on written submissions set out in a letter dated 20 April 2008. The main point on which he relies in support of his application is that the convictions which give rise to the substantive appeal are now all long since spent. They are thus matters that are ordinarily subject to the Rehabilitation of Offenders Act 1974 (the 1974 Act). It would, he submits, be a great source of embarrassment if details as to what happened in the 1980s should now come to light given his attempts to put the past behind him. Moreover it would, it is submitted, deter him from pursuing his substantive appeal because, unless it is heard in private, matters which are subject to the 1974 Act would now enter the public domain and prevent him from bringing any potential future defamation action should those matters be revealed to the press. He further submits that matters disclosed to the Law Society are not such as can be relied upon in civil proceedings.

He further submits that it would be unjust to allow details of his offending to enter the public domain because the Law Society initially granted him student membership in 2002. It would be particularly unjust in his case because he has a certain public profile through work he has carried out for the Home Office and through making television documentaries. Publication of his offending history could jeopardise this work as well as the work he carries out for his employer. Such public disclosure would, it is also submitted, cause himself, his family and those with whom he works extreme distress.

The appellant also relies on CPR 39.2(c) and on Article 8 of the European Convention on Human Rights (ECHR). As to the latter, he submits that the Law Society infringed Article 8 when it required him, contrary to its general policy, to obtain copies of his confidential police records using his own subject access rights under section 7 of the Data Protection Act 1998. The Law Society’s general policy is to require Criminal Records Bureau checks to ascertain whether an applicant for student membership has a history of offending.

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.

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):

Section 4(4) of the 1974 Act enables the Lord Chancellor, is to exclude certain professions and areas of employment from the protection the Act would otherwise provide. The protection which the Act gives is not therefore all-embracing. Where a profession or area of employment has been excluded from the protection otherwise provided by the 1974 Act an individual with spent convictions stands in the same position as an individual who has unspent convictions. They are not therefore in the position they would have been in, if they had no convictions.

The appellant applied to be a student member of the Law Society. That is part of the application process to become a solicitor. Such applications are exempt from the terms of section 4(2) of the 1974 Act: see section 3(a)(i) and Schedule 1 of The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1023/1975). That section and Schedule provide that the provisions of section 4 (2) of the 1974 Act do not apply to questions posed to individuals who seek admission to the solicitors’ profession in order to assess their suitability for such admission.

Notwithstanding the fact that he has spent convictions which would otherwise be covered by the effect of section 4 (2) of the 1974 Act he can therefore be required to disclose the existence and nature of such convictions to the Law Society and answer questions relating to those convictions during the admission process. An individual applying for admission as a solicitor does so without the protection of the 1974 Act and does so therefore on the same basis whether they have spent or unspent convictions. They can therefore be required to provide details of their convictions, irrespective of whether those convictions are spent or unspent. This is of paramount importance to the solicitors’ profession whose members must in the words of Bingham MR in Bolton v The Law Society [1994] 1 WLR 512 at 518 be capable of being ‘trusted to the ends of the earth’. In the interests of the public and the reputation of the profession, those solicitors who are convicted of criminal offences, particularly those involving dishonesty, can generally speaking be expected to be struck off the solicitors’ roll.

The exemption which exists in respect of admission to the profession extends further than that. By virtue of paragraph 1 of Article 5 of Schedule 3 of the 1975 Order it is extended to:

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):

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 39.2 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] EWHC 2482 (Admin) at 15, with which I agree, “the Rehabilitation of Offenders Act confers certain privileges. . .”. It does not attempt to go beyond the grant of those limited privileges to provide a right of confidentiality in respect of spent convictions. While the 1974 Act in some respects may place an individual with spent convictions in the same position as someone with no convictions, it does not do so by rendering the convictions confidential; it does so simply by putting in place a regime which protects an individual from being prejudiced by the existence of such convictions. For these reasons I reject the submission that the 1974 Act renders the appellant’s convictions confidential. However, if, contrary to that view, it were the case that the effect of the 1974 Act rendered details of the appellant’s convictions confidential, that protection cannot extend to the present proceedings because of the effect of the 1975 Order.

I turn to the second basis on which the appellant submits that confidentiality arises. In the context of carrying out character and suitability assessments as part of the admissions process, the SRA guarantees that it will treat information supplied to it as confidential. This policy is currently set out in the SRA’s 22 November 2007 policy statement entitled Employment of ex-offenders and assessment of character and suitability. While this policy statement post-dates the time at which the decisions subject to the present substantive appeal took place, the SRA has not suggested that there was any material difference between its policy as set out within that statement and its policy prior to November 2007.

The policy statement is in these terms:

While the guarantee explicitly refers to evidence contained in CRB Disclosure the guarantee is made in respect of information, namely the contents of the disclosure. It seems to me that it encompasses information relating to convictions whether obtained through a CRB check or, as in this case, by the SRA requiring an individual to obtain evidence of convictions by obtaining a copy of Police National Computer records through a subject access request made under section 7 of the Data Protection Act 1998. 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:

The right of appeal to the Master of the Rolls just as under sections 13, 13A and 49 is compatible with Article 6(1) of the ECHR because it is, amongst other things, an appeal to an independent tribunal. Appeals to the Master of the Rolls under the various provisions of the 1990 Regulations operate in the same way as appeals under sections 13, 13A and 49. They are also appeals to the Master of the Rolls as an independent appellate tribunal. They are not a further internal review. As a necessary corollary, a Master of the Rolls hearing such an appeal does not do so as an SRA Adjudicator but rather as a judge of an independent tribunal. If it were a further internal review, the 1990 Regulations would not need to refer to the Master of the Rolls ‘affirming’ the Society’s decision, as it does for instance in Regulation 32(3)(ii). It would not need to do so because, if it were a further internal review, conducted, as the appellant submits by the Master of the Rolls sitting as an SRA Adjudicator, the decision on the review would be a decision of the SRA.

I must therefore reject the submission that the Master of the Rolls’ jurisdiction in this matter is one exercised as an SRA Adjudicator. Consequently I must also reject the submission that the SRA’s policy statement applies to the present proceedings. The present proceedings arise outwith and independently of the SRA’s admissions process and the guidance applicable that admission process.

Might an appellant have a legitimate expectation that confidentiality guaranteed by the SRA in respect of its admissions process would and should continue to encompass these proceedings? I can see no basis for accepting that such a legitimate expectation could arise. This appeal is before an independent tribunal. Any evidence relevant will have to be disclosed to that tribunal, which as a general rule sits in public and hands down its decisions in public. Where the default position provides for public hearings, there cannot be a legitimate expectation that the confidentiality that was guaranteed by a professional regulatory body would extend to any appeal from that body. I cannot accept therefore that the SRA’s guarantee of confidentiality within its process extends to the present proceedings or gives rise to exceptional circumstances justifying the present substantive appeal being held in private.

The appellant places significant weight on the fact that the SRA required him to obtain evidence of his convictions via a subject access request rather than via a CRB check. He submits that this amounts to a breach of Article 8 of the ECHR. It seems to me that this is a matter for the SRA’s internal procedures and does not help to determine the issue whether, in light of the existence of spent convictions, any 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:

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:

Thirdly, it seems to me that the question as to whether it is strictly in necessary in the interests of justice to hold this appeal in private is a question, as Lord Loreburn put it in Scott v Scott [1913] AC at 446 a question which requires an answer to the question whether a party entitled to justice ‘would be reasonably deterred from seeking it at the hands of the court’; in this case before the Master of the Rolls. It seems to me that an individual who has embarked on such a profession of entry into the solicitors’ profession would not, when faced with the prospect of his convictions coming into the public domain via proceedings such as this, reasonably choose to withdraw his appeal as the appellant suggests he would. An individual who has already undergone a law degree and the time and expense that entails and who describes his entry into the legal profession as a lifelong dream cannot reasonably suggest that they would be deterred from conducting an appeal against a decision to revoke their student membership of the Law Society.

Finally, I note that, while the appellant emphasises the potential detriment that holding the substantive appeal in public is concerned would cause himself and his family, distress is not sufficient to require this hearing to be held in private; just as in courts of law proceedings under the 2001 Regulations cannot properly be required to be held in private, as Lord Halsbury put it at 439 in Scott v Scott out of a “mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish. . . .”

I should add that, subject to further argument at the substantive appeal, I am unable to accept the submission made by the appellant that the convictions are no longer relevant because of the decision to admit him as a student member in 2002. It is submitted that I should treat the spent convictions as irrelevant because of that decision. Although I will hear submissions on the point at the hearing of the appeal, my preliminary view is that, in reaching my conclusions in the substantive appeal, I 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.

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:

the application is refused;

the transcript of the proceedings in respect of this preliminary issue be closed;

the judgment on the preliminary issue be an open anonymised judgment;

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