Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE CALVER
Between :
SHEIKH ASIF SALAM | Appellant |
- and - | |
SOLICITORS REGULATION AUTHORITY LTD | Respondent |
Ian Skeate (instructed by Public Access) for the Appellant
Benjamin Tankel (instructed by Capsticks Solicitors LLP) for the Respondent
Hearing dates: Tuesday 27 February 2024
JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00 on Tuesday 12th March 2024.
Mr Justice Calver :
Introduction and Background
This is a statutory appeal pursuant to s.49 of the Solicitors Act 1974 brought by Mr Salam (“the Appellant”) against a finding of the Solicitors Disciplinary Tribunal (“SDT”) dated 9 February 2023 that he was guilty of dishonest conduct in his dealings with an undercover journalist and that in consequence he should be struck off the Roll of Solicitors.
Prior to him being struck off, Mr Salam was an immigration solicitor, manager and sole practitioner in a law firm in Cheshire, called Salam and Co (“the Firm”).
In 2017 he was approached by an undercover journalist posing as a potential client (“Client A”). The case against him was that he was recorded, both audibly and visually, advising the undercover journalist as to how to obtain fraudulent accountancy evidence in support of an application for a spousal visa. After giving this advice, he telephoned the accountant to introduce the journalist with a view to perpetrating this fraud.
The recordings were broadcast as part of the British Broadcasting Corporation (“BBC”) radio programme and podcast series “File on Four”.
On 23 April 2018, the BBC provided a copy of the recordings to the Solicitors Regulation Authority Limited (“SRA”) pursuant to an order of this Court under s.44BB of the Solicitors Act 1974.
The recordings included:
An audio recording of an initial telephone call on 1 December 2016 in which the Appellant allegedly invited the journalist to his office to discuss an option which he said was ‘not very straight’.
An audio recording of a meeting on or around 2 December 2016 at which the Appellant allegedly gave the dishonest advice to the journalist.
An audio recording and a video recording of a second meeting on or around 6-7 December 2016 at which the Appellant allegedly repeated the dishonest advice and introduced the journalist to the accountant.
The reason that I say “allegedly” is that, although apparently verbatim transcripts of the three recordings exist, the Appellant maintained before the SDT and maintains on this appeal that the recordings have been tampered with such that they do not accurately record what transpired at those meetings; alternatively that they record the Appellant “conducting research” or “play acting” with Client A and therefore he did not really mean what he is recorded as having said.
Disciplinary proceedings were issued on 21 July 2018, and on 23 July 2020 the SDT certified that there was a case to answer pursuant to Rule 13 of the Solicitors (Disciplinary Proceedings )Rules 2019.
Thereafter, the Appellant made numerous unmeritorious attempts to stall or prevent the disciplinary proceedings from going ahead. The chronology of those attempts is contained in Annex 1 to this judgment. It tells an extraordinarily depressing tale of an abuse of the court’s procedures by the Appellant in many different fora, culminating in Kerr J stating at a hearing on 21 October 2022 in the fourth and fifth meritless applications for judicial review brought by the Appellant:
“This is the latest in a series of attempts by the claimant by applications to this court to obstruct the disciplinary process and prevent the SRA from holding him accountable before the SDT for alleged wrongdoing. If he continues to make unfounded and abusive applications to this court of a similar nature, it is likely that a civil restraint order of some kind will be made against him.” (Footnote: 1)
Regrettably, this abusive behaviour persists. On 19 February 2024 the SRA was served with an unsealed copy of a claim form and particulars of claim by the Appellant. The claim does not state a cause of action or remedy but apparently requests that two high court orders dated 8 June 2021 and 27 May 2022, made in the Appellant’s previous judicial review claims of decisions made by the SDT, be overturned on the basis of “fraud”. The claim raises the same points as those raised on this appeal, but utilised in support of a claim to set aside earlier orders on grounds of fraud. Whilst this claim was not before me, it is clear that whichever judge comes to consider that claim will need to be aware of the highly unsatisfactory background to which it is being brought, as contained in this judgment, including Annex 1 hereto. In short, the overall delay created by the Appellant’s meritless behaviour exceeded two years and resulted in no fewer than six adjournments of the substantive disciplinary hearing.
The Allegations against the Appellant
The allegations against the Appellant which were before the SDT were that;
When in practice as a solicitor and sole practitioner at Salam & Co Solicitors Limited (“the Firm”):
Whilst advising Client A on a possible visa application for her husband, he:
Introduced her to an accountant for the purposes of her obtaining false documentation to support the application, and by reason of such failure breached one or more of Principles 1, 2 and 6 of the SRA Principles 2011;
and
Failed to advise Client A that applying for a spousal visa on the basis of false documentation was unlawful, and by reason of such failure breached one or more of Principles 1, 2 and 6 of the SRA Principles 2011.
He acted dishonestly in respect of allegation 1.
Hearing before the SDT
At the substantive disciplinary hearing on 31 October 2022, oral evidence was given by Mr Grant, a senior broadcast journalist at the BBC. He explained the process of how he and Client A obtained, stored and used the audio recordings. In particular, he explained how Client A gave him the recording equipment and memory cards shortly after each recording was made. He kept copies of the recordings by then uploading them onto a hard drive and onto his personal work laptop to which only he had access, being password protected. The original recording equipment was then returned to the third-party supplier of it, and the memory cards were wiped at the end of the investigation. The metadata for the files that were retained does not show the dates when the recordings were made.
Mr. Grant explained how Client A had handed the recordings to him as soon as she came out of the meeting on or around 7 December 2016 (referred to in paragraph 6(c) above). Mr. Grant explained that he was responsible for using the recordings in the BBC programme. He confirmed that the full recordings which he subsequently provided to BBC’s Litigation Department were not altered or edited by him in any way nor did he believe that anyone else had edited or altered them.
The SDT also received oral evidence from Mike Shields, a forensic investigation manager of the SRA (he was not the forensic investigation officer who had carried out the investigation as that person had regrettably died before the hearing). Mr Shields was in possession of the investigation files which the SRA had previously believed to have been misplaced. The files were obtained and upon review the SRA confirmed that there were no relevant materials on them to disclose. It nevertheless provided voluntary disclosure of a number of documents. The Appellant confirmed, however, that none of these were relevant.
The Appellant chose not to give any oral evidence to the SDT and accordingly was not cross-examined.
The full procedural chronology is set out in Annex 1 to this judgment. At this juncture, it is only necessary to mention that on day 2 of the substantive hearing on 1st November 2022, the Appellant claimed that he suddenly had been taken ill and that he required emergency treatment. This necessitated the adjournment of the substantive hearing which was part-heard, and it was re-listed for 8-9 February 2023.
Shortly prior to the resumed hearing, on 27 January 2023 and 1 February 2023 the Appellant made further applications for an adjournment of the hearing which were dismissed by the SDT.
Further still, on 5 February 2023 the Appellant applied for the chairman of the SDT to recuse himself on the grounds of apparent bias.
The hearing resumed in-person on 8 February 2023. The Appellant decided to attend remotely from his home in Chester (the SDT sits in Central London). His recusal application was rejected by the SDT. After it was rejected, the Appellant said that he had intended to attend only the recusal application remotely; insisted that Mr Shields should give the remainder of his evidence in person; and insisted that the hearing should adjourn whilst the Appellant travelled to the hearing to attend in person. This was despite the fact that the Appellant had previously expressly agreed that Mr. Shields should be able to conclude his evidence remotely (as recorded in the SDT’s ruling on 4 November 2022, paragraph 17). The SDT, unsurprisingly, rejected this request and decided to proceed. The Appellant then stated that, because Mr Shields was not present in-person, he would refuse to ask him any further questions and so Mr Shields was released. This was again wholly unreasonable behaviour, with the Appellant once again playing “fast and loose” with the SDT.
The Appellant then made a submission of no case to answer, which was dismissed.
As mentioned above, the Appellant chose not to tender himself for cross-examination. Instead, he relied upon the extensive written material he had already submitted, and made oral closing submissions.
The SDT had before it the actual recordings as downloaded onto Mr. Grant’s laptop which it watched and heard for itself, as well as the transcript of the recordings. The SDT accurately recorded the relevant text of the transcript within its Judgment at paragraphs 15-21 as follows:
“The First Meeting
15. Client A met with Mr Salam at the Firm’s premises on or around 2 December 2016. Client A again conducted a covert audio recording of the meeting which was subsequently transcribed. Conversations which took place in Urdu were translated for the purpose of that transcript.
16. Client A informed Mr Salam that she wanted to make an application for her husband to come to the UK from Pakistan. She reiterated that which had been discussed during the initial telephone call, namely that she earned £12,000.00 per annum and held savings of £3,000.00.
17. Mr Salam enquired whether she could obtain a second job to which Client A advised she could not. The following exchange ensued:
“…
Mr Salam: You should, you should, I think they’re not paying you well. So, the other option which I was trying to tell you because a lot of people are in difficulty. So, you can go to some accountant and ask them to get you a second job, on paper at least, so they can do that. We don’t get involved but it’s between you and them.
Client A: Okay. Do you know anybody?
Mr Salam: All accountants are naughty.
Client A: Right, okay. So, what do I say to them?
Mr Salam: You say, ‘This is what I need’, openly.
Client A: What, what do I need? I just need another job.
Mr Salam: You, you need to have payslips and bank statements so that they will rotate the money to your bank also.
Client A: So, I don’t have to do the job? When you say they rotate my money what do you mean?
Mr Salam: They will pay you for the second job –
Client A: They will pay me?
Mr Salam: ... because it’s their money, then you only have to show that you are working and you are getting paid.
Client A: Sorry, I don’t mean to be thick, I don’t understand what do you mean. So, I give them money?
Mr Salam: No. Yeah, something like that. Look, if they employ you for a job caring, say, £600 a month this is what you need in addition to £12,000 a year so £600 per month. So, what they will do is you pay them £600 and they will pay £600 into your bank account net of the tax, they will take the tax and things off, and issue you a payslip for £600. This is what is main priority, so it’s your money, you give it them, they give it to your bank account so that your bank shows you getting second job payment … and they will give you a payslip.
Client: A Right, okay. But I don’t know anybody.
Mr Salam: We will monitor you. Don’t worry. We will help you with all the process.
Client A: Right. But, so the only thing I need to give you then is what, what do I need to give you? Just bring my wage slips in and -
Mr Salam: A lot of other things also but since we are to wait for six months in doing all this here we will tell you what else you need to do…
…
Mr Salam: We charge £900 - but we won’t charge you any extra for six months that we will be working with you. Because normally what happen, people come, they have everything so in a month’s time we finish it off.
Client A: Will I have to pay the accountant extra?
Mr Salam: I can’t get involved to who is paying us or anything like that. You will never tell me you have given him £600 or. . . I will only monitor your paperwork and see everything is going fine.
Client A: Okay.
Mr Salam: So, that, you can negotiate with him, whatever. If you don’t like the man if I give you a reference then go to anyone else. All, they’re all into these things…
…
Mr Salam: … take six months. Either you find a job which is the best thing to do, a genuine, or go and get it done from the accountant. The Surinder Singh, I don’t recommend …
…
Mr Salam: We do help people exaggerate their circumstance, make them look more compelling. There are limits, but we don’t simply say something which is totally … dodgy…”
The Second Meeting
18. On or around 6–7 December 2017, Client A met with Mr Salam again at the Firm’s premises. Client A conducted a covert video and audio recording of the meeting which was subsequently transcribed. Parts of the conversations which took place in Urdu were translated for the purpose of that transcript.
19. Client A reminded Mr Salam of her financial position. Mr Salam reiterated that she did not meet the minimum financial threshold required for spousal visa applications. The following exchange ensued in relation to the fee of £900 suggested by Mr Salam for assisting in Client A’s potential spousal visa application:
“…
Client A: So, for the £900, what do we get for £900? How can you help us?
Mr Salam: … we will provide you advice …we will provide you guidance, how to go about it, that’s the most important thing that we do. Then we do the application form online form … Then we pay all your fees through your card or whatever from here. You book an appointment for him to go to the embassy from here. We do the application pack, everything, from here … It’s a lot of work if you do it properly…
Client A: … you said there’s a solution.
Mr Salam: … there’s is a dodgy way of doing it either, if you want to do the proper way it is to go and find a second job…
… the dodgy thing is you ask an accountant to create you as an employee with someone for six months because you need at least for six months…
… those payslips, your bank statement should reflect payments coming in from the employer and payslips will permit you from the accountant.
Client A: … this is somebody that you know or do I have to find a person then?
Mr Salam: I will send you to someone. I don’t get involved into it more than that - … - because it’s something ethically I should not get involved. I’m just trying to help you, nothing more than that. We will just monitor everything. Every month you just send us a copy of your wage slips and bank statements.
Client A: This person will or do I have to go and collect them?
Mr Salam: You can arrange with him howsoever, but we need to have them every month. so that if there is something wrong I will give you a call …
Client A: … Will you have a word with the accountant then?
Mr Salam: Yes, if there’s a problem …
Client A: Right, okay, yeah, yeah.
Mr Salam: … I’ll show you something. This is what, the real, the real thing, not something like manufactured that we are discussing. Even in the real world, what happens is: This is someone who has been refused we just prepare letter asking them to review it and the issues were that you are getting …
Client A: Okay. Is this somebody whose application you did from the beginning?
Mr Salam: No.
Client A: No. No, okay.
Mr Salam: The problem is this is real one, nothing dodgy…
Client A: … But can I just check with you in terms of the accountant then, I’m going to have to give him money then, aren’t I, to
Mr Salam: I don’t get involved in that.
Client A: But what, how will that accountant help me then? …
Mr Salam: If you’re, if, say, your short by, say, £600 a month, you will give him £600 and he will settle it, go to the employer bank account and from there he will transfer £600 to your bank account and that’s what I mean you will pay him £600 in cash…
Client A: … Okay. Would you speak to the accountant first though or do I go straight to that person?
Mr Salam: No, you can go there straight, tell them I have referred you so then they know.
Client A: Can I just, I mean, have you done this before? Has it worked?
Do -
Mr Salam: It works every time… This way, this is a shortcut solution.
Client A: So, I’m not doing the job?
Mr Salam: Of course not.
Client A: You know, like, you were saying you’re going to monitor them, so you will check the wage slips to make sure they’re doing everything -
Mr Salam: You have to, you have to give that, give us the wage slips and bank statements every month -
Client A: Every month.
Mr Salam: Immediately, the moment you get them…
Client A: Do you know how much the accountant might charge me to do this or is it all included? …
Mr Salam: … this is between you and them. You negotiate with him, don’t tell me how much he’s charging you, I’ve never asked and, and I’ve told them, ‘You don’t tell me otherwise I’m a party to it. I don’t want to.
Client A: So, you can’t tell me who they are now or. . .?
Mr Salam: No, I can give you their number and - if there is an issue you let me know. It’s not that I won’t do anything, the only thing is I can’t get involved in dodgy stuff in-depth.
Client A: Do –
Mr Salam: … if there is an issue you let me know. It’s not that I won’t do anything, the only thing is I can’t get involved in dodgy stuff in-depth…
Client A: Many thanks. what is the accountant’s number? … Is he our own kind [i.e. Pakistani]?
Mr Salam: Yes, Daysi 1 [i.e., Pakistani]. Only Daysi 1 people engage in number 2 [i.e. counterfeit/dodgy] work … Daysi people are the best in doing number 2 work. Even in immigration, you can see that all the good consultants are Pakistani.
Client A: Right
Mr Salam: The barristers’ work is done by the English but we tell them only that much as required…”
20. Mr Salam proceeded to provide Client A with the accountants’ telephone number and the following exchange ensued:
“…
Client A: Many thanks. But please talk to him now; you’re going to talk to him on my behalf as well, aren’t you?
Mr Salam: Wait a second. Is your name Samina?
Client A: Yes.
[Mr Salam called the accountant]
Mr Salam: He’s not answering.
Client A: Can I leave it with you? Because I think you’ve got . . .
Mr Salam: I am going to give you this. Note this too. I don’t know why the zero is not there. Add a zero to it. This too is Wajid’s number.
Client A: Aren’t these the people who own the cash and carry?
Mr Salam: Yes. They have a Cash and Carry too.
[Wajid answered the telephone]
Mr Salam: …How are you? Is everything fine? We haven’t chatted for many days. It’s kind of you. I have a client here. She needs something for her spouse’s visa. Her name is Samina. She’s a good lady, it is right to help her, you know? … Okay? I have given to her your mobile number. It’s Mrs Samina…”
21. At the conclusion of the Second meeting, Client A paid a fee of £50.00 to the Firm.”
The transcript is damning. On its face, it shows the Appellant knowingly engaged in a thoroughly dishonest practice of advising and encouraging Client A to commit fraud, by pretending to have two jobs in order falsely to inflate her earnings (to meet the necessary financial threshold), with the participation of a “dodgy” accountant recommended by the Appellant. This was all being done to assist in the obtaining of a spousal visa on false premises. The Appellant said he would participate further in this dishonest scheme, which he himself proposed to Client A, by subsequently applying online for the visa on her behalf and processing the false wage slips/bank statements. He knew it was something with which in his own words “ethically I should not get involved.” He knew that what he was suggesting was in his own words “dodgy” (i.e. unlawful) and so he wanted to stay in the background once Client A had hooked up with the “accountant” because “the only thing I can’t get involved in is dodgy stuff in depth.” When asked if he had done this before, he said “it works every time”, suggesting he had done this on several prior occasions. Indeed, the fact that he had already lined up a complicit “accountant” and that he had honed the elements of the scheme, clearly suggests that he had done it several times before.
Faced with the unequivocal transcripts of the audio and visual recordings which had been supplied by Client A to Mr. Grant straight after the meeting, downloaded by Mr. Grant and then passed on to the BBC Litigation team (which the SDT watched and listened to, as well as having the complete transcripts of the recordings), the Appellant was driven to asserting the following defences throughout the investigation and the SDT proceedings:
The ‘Research’ Defence. The Appellant maintained that what was heard on the recordings was part of “research” that he was carrying out into the immigration industry, for the purposes of one of his (supposed) books or televised lectures. On 5 January 2017 the Appellant sent an email to Mr Grant in which he suggested that “as part of my research I also shortly before your email of 15 Dec 2016 (Footnote: 2) did act to use an inquisitive character to find out what and how some Accountants may be doing and for how much to wrongly help British sponsors beef up their incomes to meet immigration threshold to sponsor non-British family members. Conversation with such a person acting and faking is different”.
The Play-acting Defence. The Appellant maintained that he knew that Client A was not a genuine client and believed that she was part of a plan to sabotage his business. His advice was said to be an attempt on his part to expose this. During the investigation on 30 August 2018, the Appellant sent an email to Mrs Dhaliwal of the SRA as follows: “[d]ue to my belief that she did not present herself as a genuine client, I thought a rival had put her up to it and I went along with her, effectively calling her bluff and acting”.
The Conspiracy Defence. The Appellant stated he believed Client A was playing her part in a conspiracy between the BBC and the Government to influence the decision of the Supreme Court, which at that time was considering its judgment in the case of MM(Lebanon) v SSHD [2017] UKSC 10. In his 15 September 2020 Answer to [the] Allegations, he stated: “It is now no secret that the Government has a policy in place to bully what they call ‘activist lawyers’ helping migrants. They had a video recently taken off apologetically while the Law Society and the Bar condemning this. However, the policy has not been discontinued as later clearly spelt out by the Home Secretary.”
The Authenticity Defence. The Appellant challenged the recordings on both accuracy and admissibility grounds and suggested they had been dubbed to incriminate him. In his 15 September 2020 Answer to [the] Allegations he said that he “challenge[d] the authenticity of all the audios videos and the transcripts included in evidence.” He said that he did try to get a forensic test of the recordings but he was told by the experts that “the changes and the tampering cannot be discovered from the copies.” He did not explain which parts of the transcript he alleged had been changed or tampered with or how that could have happened, nor did he explain how this allegation was consistent with his allegation that the transcripts show him play acting or conducting research (which necessarily assumes the authenticity of the same).
The SDT’s findings
In considering Allegation 1.1.1, the SDT considered each of these defences and rejected them all at paragraphs 37.40 to 37.56 of its judgment. In particular it found as follows:
“37.45 The Tribunal carefully considered the evidence before it. In so doing, it determined that the audio and video recordings as well as the transcripts made in that regard were reliable and accurate. There was nothing in evidence to suggest otherwise beyond Mr Salam’s bald submissions in that regard. The Tribunal rejected as completely without foundation Mr Salam’s assertions that the recordings had been tampered with such that they did not present the full picture.
…
37.49 The Tribunal considered the various defences advanced by Mr Salam in writing and by way of submissions. The Tribunal rejected them in their entirety as inconsistent, totally implausible and disingenuous. On the contrary, Mr Salam’s moral compass appeared at times to the Tribunal to have been pointing in entirely the wrong direction.
37.50 Mr Salam’s contention that he was play-acting was at odds with the ebb and flow of his interactions with Client A which appeared natural and authentic. The suggestion that he was conducting research was not remotely plausible, generally asserted and ridiculous.
37.51 Mr Salam’s attacks on the accuracy of the recordings were also considered to be without foundation. They had been considered and arguments raised by Mr Salam attacking the recordings had all been determined against him following numerous failed applications that he had previously made (a) to the Tribunal for a stay of proceedings as an abuse of process on 30 October 2020, (b) for permission to the Administrative Court for judicial review of that Tribunal decision (and other decisions made at subsequent Case Management Hearings) and (c) for permission to appeal to the Court of Appeal (Civil Division) against the Administrative Court refusal of permission.
37.53 Mr Salam’s allegations impugning the conduct of the Applicant were pugnacious but quite unsubstantiated.
37.54 For the avoidance of doubt, the Tribunal did not draw an adverse inference as a consequence of Mr Salam’s failure to give evidence. The Tribunal did not consider it necessary to do so given the strength of the evidence against him.
37.55 The Tribunal therefore found the factual matrix of Allegation 1.1.1 PROVED on a balance of probabilities.
37.56 Mr Salam instigated and participated in a potential scheme which encouraged illegality designed to mislead the Home Office and the British Government which was plainly contrary to the rule of law, demonstrably lacked integrity and flagrantly undermined public trust in him and the profession. The Tribunal therefore found, by virtue of Mr Salam’s conduct, breaches of each of Principles 1, 2 and 6 PROVED on a balance of probabilities.
37.57 With regards to the aggravating feature of dishonesty, the Tribunal determined that Mr Salam’s state of mind at the material time was that (a) he knew Client A did not meet the financial threshold for a spousal visa application, (b) he advanced a proposition in order for her to fabricate a second job and falsely inflate her income, (c) he knew that any application he drafted on her behalf would be predicated on the fabricated payslips, (d) he repeatedly referred to the arrangement as “dodgy”, The Tribunal had no hesitation in equating this vernacular term to dishonesty in the context in which it was used by Mr Salam (e) he was well aware of the dubious nature of the arrangement given his efforts to distance himself from interactions between Client A and the “accountant” and (f) he knew that the Home Office would rely upon the false payslips in its consideration of the application. Indeed Mr Salam’s offer to monitor the payslips for errors could have bolstered that deception. The Tribunal determined that ordinary decent people would consider such -conduct to be dishonest and therefore found the aggravating feature of dishonesty PROVED on a balance of probabilities.”
Because Allegation 1.1.1 was proved, the SDT found that (at paragraph 37.56):
“Mr Salam instigated and participated in a potential scheme which encouraged illegality designed to mislead the Home Office and the British Government which was plainly contrary to the rule of law, demonstrably lacked integrity and flagrantly undermined public trust in him and the profession. The Tribunal therefore found, by virtue of Mr Salam’s conduct, breaches of each of Principles 1, 2 and 6 PROVED on a balance of probabilities.”
So far as Allegation 1.1.2 was concerned, the SDT stated at paragraph 38.13:
“Allegation 1.1.2 was inelegantly drafted and duplicitous in nature. The Tribunal considered that it added nothing to the gravamen of Allegation 1.1.1, was disproportionately and unnecessarily pursued.”
Sanction
At paragraphs 42-44 of its judgment the SDT held that given the serious finding of dishonesty, the appropriate sanction was to strike the Appellant’s name from the Roll of Solicitors:
“42. The Tribunal referred to its Guidance Note on Sanctions (Tenth Edition: June 2022) when considering sanction cognisant of the fact that the purpose of sanction was to preserve the overarching public interest which comprised of (a) the need to protect the public from harm, (b) the need to declare and uphold proper standards within the solicitor’s profession and (c) the need to maintain public confidence in the regulatory framework.
43. Given the serious finding of dishonesty, it was plain to Tribunal that other measures such as making no Order, imposing a reprimand, financial penalty, restrictions on Mr Salam’s practice or a term of suspension from the Roll were neither appropriate nor proportionate.
44. The Tribunal found no exceptional circumstances either in the submissions that had been advanced by Mr Salam or evident on the face of the papers, and accordingly that the only sanction which sufficiently met the overarching public interest was an Order striking Mr Salam from the Roll of Solicitors.”
Legal Principles
The Appellant, who was ably represented by Mr. Ian Skeate (Public Access counsel) on this appeal, advanced what he described as 12 Grounds of Appeal but which consist in reality of 24 Grounds (as Ground 7 consists of 13 separate Grounds). Mr. Skeate very sensibly rationalised those Grounds, by confirming that he did not pursue Grounds 3, 4, 7(vii), 7(xi) or 7(xiii). He also did not pursue a number of the unsustainable submissions in the Appellant’s skeleton argument (Footnote: 3) which accordingly I do not address in this Judgment.
Before turning to those Grounds, it is necessary first to summarise the legal principles which this court must apply on an appeal such as this.
This appeal is brought in the specific context of allegations made by the SRA, which was the context with which Morris J was concerned in Ali v SRA [2021] EWHC 2709 (Admin) [92]-[94], in which he helpfully summarised the legal principles as follows:
“92...CPR 52.10 and 52.11 apply to an appeal under s.49 of the 1974 Act. It is an appeal by way of review and not by way of rehearing: … special provision for a s.49 appeal is not made in CPR Practice Direction 52D. However where the appeal court is being asked to reverse findings of fact based on oral evidence, there is little, if any difference, between "review" and "rehearing": see Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 §§13, 15 and 23.”
93. Thirdly, the Court will only allow the appeal if the decision of the Tribunal was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings in the lower court" ( CPR 52.21(3)(a) and (b)).
94. Fourthly, as regards the approach of the Court when considering whether the Tribunal was "wrong", I refer in particular to Solicitors Regulation Authority v Day [2018] EWHC 2726 (Admin) at §§61-78, Solicitors Regulation Authority v Good [2019] EWHC 817 (Admin) at §§28-32, the Naqvi Judgment at §83, citing Solicitors Regulation Authority v Siaw [2019] EWHC 2737 (Admin) at §§32-35, and most recently, Martin v Solicitors Regulation Authority [2020] EWHC 3525 (Admin) at §§30-33. From these authorities, the following propositions can be stated:
(1) A decision is wrong where there is an error of law, error of fact or an error in the exercise of discretion.
(2) The Court should exercise particular caution and restraint before interfering with either the findings of fact or evaluative judgment of a first instance and specialist tribunal, such as the Tribunal, particularly where the findings have been reached after seeing and evaluating witnesses.
(3) It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge would have reached. That is a high threshold. That means it must either be possible to identify a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence. If there is no such identifiable error and the question is one of judgment about the weight to be given to the relevant evidence, the Court must be satisfied that the judge's conclusion cannot reasonably be explained or justified.
(4) Therefore the Court will only interfere with the findings of fact and a finding of dishonesty if it is satisfied that that the Tribunal committed an error of principle or its evaluation was wrong in the sense of falling outside the bounds of what the Tribunal could properly and reasonably decide.
(5) The Tribunal is a specialist tribunal particularly equipped to appraise what is required of a solicitor in terms of professional judgment, and an appellate court will be cautious in interfering with such an appraisal.
Finally, as regards reasons, decisions of specialist tribunals are not expected to be the product of elaborate legal drafting. Their judgments should be read as a whole; and in assessing the reasons given, unless there is a compelling reason to the contrary, it is appropriate to take it that the Tribunal has fully taken into account all the evidence and submissions: Martin, supra , §33.”
The SDT’s findings in the present case were made based upon its assessment of the evidence before it, both in documentary form (especially the transcripts of the contemporaneous recordings) and in the form of live witnesses called by the SRA. Its central findings consist of findings of fact.
The applicable approach when considering an appeal against findings of fact was recently summarised by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 454 at [2]. Consistently with what Morris J said in Ali, the Court stated:
“The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
(ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
(iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
(v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
(vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.” (emphasis added)
So far as the SDT’s approach to the appropriate sanction is concerned, section C of SDT Guidance Note on Sanctions (10th edition) (“the Guidance”) gives specific guidance to tribunals on how to approach the sanction in a case of dishonesty. Of course, this is only guidance and it does not purport to fetter the tribunal’s discretion as to the appropriate sanction on the facts of the case.
The Guidance states, however, that “finding that an allegation of dishonesty has been proved will almost invariably lead to striking off, save in exceptional circumstances (see Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin))”.
The exceptional circumstances must relate to the dishonesty and the Guidance provides that:
“In considering what amounts to exceptional circumstances: relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, or over a lengthy period of time; whether it was a benefit to the solicitor, and whether it had an adverse effect on others.
…
The principal focus in determining whether exceptional circumstances exist is on the nature and extent of the dishonesty and the degree of culpability (applying Sharma and R (Solicitors Regulation Authority) v Imran [2015] EWHC 2572 (Admin)).
As a matter of principle nothing is excluded as being relevant to the evaluation, which could therefore include personal mitigation. In each case the Tribunal must when evaluating whether there are exceptional circumstances justifying a lesser sanction, focus on the critical questions of the nature and extent of the dishonesty and degree of culpability and engage in a balancing exercise as part of that evaluation between those critical questions on the one hand and matters such as personal mitigation, health issues and working conditions on the other.”
The Guidance accurately reflects the approach of the courts to a case of solicitor’s dishonesty, namely that the normal and natural sanction in cases of dishonesty will be the striking-off from the Roll, save in exceptional circumstances: SRA v Sharma [2010] EWHC 2022 and Bolton v Law Society [1994] 1 WLR 512 at 519B-E:
“Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness.” (emphasis added)
Grounds of Appeal
Ground 1: the decision is wrong and unjust due to serious procedural and other irregularities in the proceedings.
Ground 2: the decision is perverse and harsh.
Ground 11: It was wrong for the Judge to have held without any expert or other evidence that the recordings were reliable and accurate (the BBC could not even provide the dates of the recording) and the Judge wrongly recorded that it was open for A to instruct an expert for a forensic test, knowing well the facts including that applications by A for directions to instruct forensic expert were refused by the Tribunal and JR against such refusal was also refused because of the SRA asserting and even the HC accepting that the evidence was lost and there was nothing to put to forensic test and therefore no expert should be instructed, and thus the Chair misrepresented the facts in his Judgement.
Mr. Skeate confirmed that Grounds 1 and 2 should be read together with the real complaint, being that contained in Ground 11. Indeed, Mr. Skeate agreed that Ground 11 was the main (albeit not the only) ground of the Appellant’s appeal. I accordingly deal with it first, as did Mr. Skeate in his oral submissions to the Court.
The SDT dealt with the authenticity of the recordings in its Judgment at paragraph 37.45 as follows:
“The Tribunal carefully considered the evidence before it. In so doing, it determined that the audio and video recordings as well as the transcripts made in that regard were reliable and accurate. There was nothing in evidence to suggest otherwise beyond Mr Salam’s bald submissions in that regard. The Tribunal rejected as completely without foundation Mr Salam’s assertions that the recordings had been tampered with such that they did not present the full picture. It had been open to Mr Salam to instruct and rely upon expert evidence in order to substantiate his submissions regarding the accuracy or otherwise of the recordings relied upon by the Applicant. Mr Salam elected not to do so. The Tribunal was required to adjudicate upon the allegations on the evidence before it in circumstances where there was no evidence which led it to question the veracity of the recordings. The Tribunal relied upon the same.”
The Appellant submits that the recordings are not authentic. However, Mr. Skeate realistically accepted that, in his words, there had to be at least a “prima facie case” that the recordings were inauthentic before the SDT should allow the Appellant to adduce expert evidence as to their alleged lack of authenticity.
Yet there was no evidence adduced by the Appellant which came close to supporting a prima facie case. The SDT heard the evidence of Mr. Grant, described in paragraph 12 above, to the effect that the recordings were authentic and had not been tampered with by anyone. There was no contrary evidence to support the assertion that the recordings were inauthentic.
Rule 30(3) of The Solicitors (Disciplinary Proceedings) Rules 2019 provides, under the heading “expert evidence” that: “The Tribunal may permit expert evidence to be adduced where it considers that such evidence is necessary for the proper consideration of an issue or issues in the case.”
In the circumstances, it was open to the SDT to consider that expert forensic testing was not necessary for the proper consideration of determining the authenticity of the recordings as no sensible case had been advanced by the Appellant to support the suggestion of inauthenticity.
Furthermore, the SDT had, before the substantive hearing, already dealt at an earlier stage (on 6 January 2021) with the Appellant’s application (dated 14 December 2020) to adduce expert forensic testing evidence. It had refused that application in its Memorandum of Case Management Hearing because:
“20. Whilst various issues with the recordings had been raised several months ago, the Tribunal also noted that the Respondent’s complaints about it having been tampered with lacked any specificity. Despite the detailed documents referred to above, he had not spelled out clearly what parts of the transcripts he considered were inauthentic. Again the Tribunal considered that the Respondent had had ample opportunity to provide details of any elements of the transcripts he accepted and those that he did not.
21. The Tribunal carefully considered the Respondent’s submissions about being able to adequately defend himself and whether a fair hearing was possible on the basis of the material available. The Tribunal noted the Applicant’s position that it was unable to provide material it did not possess and that the statement obtained from the senior journalist dealt with the authenticity and integrity of the recordings as far as was possible. The senior journalist would be available for cross examination.
22. The Tribunal did not consider that the instruction of an expert was warranted in all the circumstances or required for a fair hearing. In the absence of evidence indicating tampering, and given the reported absence of material which could be subjected to forensic testing, the Tribunal did not consider that such an instruction would assist with dealing with the case justly, at proportionate cost or expeditiously in accordance with the overriding objective. The fact that the Respondent had failed to take available steps to make progress towards a preliminary instruction or to provide details of which parts of the recordings he took issue with over an extended period also weighed against granting the application.” (emphasis added)
It is no doubt in that context that the SDT made its observation (in paragraph 39 above) that it had been open to the Appellant to apply to adduce expert evidence but he had failed to do so.
On 8 June 2021 the Appellant applied for, but was refused, permission to judicially review the SDT’s refusal to grant permission for expert forensic evidence. Clive Sheldon QC (sitting as a Deputy Judge of the Queen’s Bench Division) said this in refusing permission:
The Claimant had sought permission for the instruction of an expert to report on the authenticity of the audio and video recordings. The SDT dismissed this application on the basis that the instruction of an expert was not warranted in all the circumstances or required for a fair hearing. There was no evidence indicating tampering of the recording, there was no material which could be subject to forensic testing (the original recordings were no longer available), the Claimant had not provided details of which parts of the recording he took issue with, and the Claimant had failed to take available steps to make progress towards a preliminary instruction. In my judgment, these were all appropriate factors for the SDT to take into account, and it is not arguable therefore that the SDT had erred in refusing the application. Further, as explained by the SDT, it was open to the Claimant to take the necessary steps towards a preliminary instruction and renew his application at the substantive hearing. (underlining added)
At the time of the substantive hearing, in respect of the matters underlined in paragraph 46 above, the position was exactly the same. The SDT was accordingly left with the mere assertion of the Appellant that the recordings had been tampered with, and that assertion was unfounded, being unsupported by any evidence.
The SDT’s decision that the recordings were authentic was a finding of fact. It cannot possibly be said that that decision is one that no reasonable tribunal could have reached. On the contrary, no reasonable tribunal could have found that the recordings were inauthentic.
Further still, as Mr. Tankel for the SRA rightly pointed out, not only was there not a scintilla of evidence to support the suggestion that the recordings were in any respect inauthentic (Footnote: 4), but the authenticity of the transcript was corroborated by other evidence before the SDT.
First and foremost, there was the evidence of Mr. Grant. He gave evidence by his witness statements that Client A “gave me the recordings shortly after each recording was made” (Footnote: 5) and he then downloaded them onto his laptop. This was fatal to Mr. Skeate’s submission (what he termed “the bombshell”) that the recordings could have been tampered with in the period between Client A leaving the meeting and her giving the recordings to Mr. Grant in his car immediately thereafter. Mr Grant confirmed this in his oral evidence to the SDT. He said that as soon as Client A left the meeting with the recording in her bag, she walked straight to his car and then gave him the recordings (Footnote: 6). This also undermined Mr. Skeate’s suggestion that it was necessary for Client A to be called as to the authenticity of the recordings.
Crucially, it was not put to Mr. Grant in his cross examination by the Appellant that he had personally tampered with the recordings or that he had dubbed them.
Mr. Grant was cross-examined, however, by the Appellant about compliance with BBC editorial guidelines; the downloading and then wiping of the original recordings and how he transferred the recordings within the BBC; the non-retention of the third-party provided recording equipment; the fact that the audio and visual recordings were of slightly different lengths, the reason for which he explained (“there was a short bit of video recording before I think the reporter met Mr. Salam that was not sent initially purely by error and as soon as we were made aware of that it was sent to the SRA”); his lack of precision about the precise dates of the relevant meetings; how he prepared his witness statement; and controversies at the BBC in respect of entirely unrelated events (such as the Martin Bashir interview of Princess Diana). He answered all of these questions convincingly and significantly he did not alter or resile from his evidence that neither he nor any third party to the best of his knowledge tampered with the recordings.
Second, substantial parts of the Appellant’s defence – for example his “play-acting” or “research” defence – necessarily assumed that the recordings, and transcripts of them, were accurate. (Footnote: 7)
Third, the SDT watched and heard the recordings for itself.
Fourth:
The Appellant gave no contradictory evidence at the hearing, because he chose not to give any evidence at all. Mr. Skeate argued that that made no difference because the SDT was “determined to believe” that the recordings/transcripts were authentic. But that ignores the fact that it was indeed bound so to conclude without there being any contradictory evidence before it, and unless the Appellant explained which part or parts thereof he suggested were inauthentic and why. But he did not do so and indeed he has never done so. He has had many opportunities to do so including being asked expressly to do so by way of a s.44B notice, and by Benjamin Douglas-Jones KC (sitting as a Deputy High Court Judge) in judicial review proceedings: [2022] EWHC 1793 (Admin).
As the SDT found, the Appellant provided no evidence in support of his contentions that the recordings were dubbed. Indeed, he did not question the accuracy of the words which the recordings and transcripts show that he used. Mr. Skeate submitted initially that the appellant told the SRA that these were “not my words”. However, in answer to questions from the court he had to accept that the Appellant in fact never said that (see for example the Appellant’s detailed letter of response to the SRA dated 7 April 2020).
The Appellant did not deny that the individual in the video was him.
The Appellant did not put forward any positive, alternative, account of what took place during the meetings.
The SDT found no motive on the part of the BBC, a highly respected broadcasting company, to manipulate the recordings. It rightly rejected as “outlandish” the Appellant’s suggestion that he had been the victim of a conspiracy at the hands of the BBC, the government, and/or the SRA.
Fifth, a number of different judges have remarked upon the absence of any evidence of tampering:
Lang J found that the Appellant’s contentions about the accuracy of the recordings appeared “tenuous”;
Heather Williams J found that the SDT’s finding that “nothing had been produced that indicated that the evidence relied upon by the SRA had been fabricated" was “lawful”;
Benjamin Douglas-Jones KC noted that “when pressed by the court, the claimant...was unable to say how [his “dubbing” argument] might affect his case at all, let alone materially, given his case that the conversation with the Reporter had taken place;
Coulson LJ noted that “despite all the time that has elapsed, no evidence has ever been provided by the applicant which suggested that the recordings were in any way inaccurate”.
In all the circumstances, Ground 11 is hopeless.
Ground 3: the decision is wrong due to actual bias of the Judge against the
Appellant during the currency of the case.
Ground 4: the Judge was wrong and unjust in refusing to recuse himself.
Mr. Skeate very sensibly abandoned the unfounded allegations in Grounds 3 and 4.
Ground 5: the hearing was not fair and in the circumstances, it was not fair to try the Appellant.
The Appellant submits that the SDT failed properly to apply the principle in R v Galbraith [1981] 1 WLR 1039 in respect of the recordings/transcript evidence:
“(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
In oral submissions, Mr. Skeate submitted that it was unfair of the SDT to proceed with the hearing in circumstances where the Appellant was “unable to defend himself against the allegation that the audiotape was genuine and accurate because it had his voice on it, absent any forensic analysis and absent any evidence from Client A. The SRA should have interviewed her.”
There is no merit in this submission. First, the SDT was fully entitled to find that the recordings were genuine for the reasons set out above. In short, it was open to the SDT to reach a view as to the authenticity of the recordings by reviewing the recordings for themselves, considering the evidence of Mr Grant, and noting the absence of any evidence from the Appellant that the recordings were unreliable.
The Divisional Court (Flaux LJ and Fordham J) endorsed a similar approach to that of the SDT in the present case in Naqvi v SRA [2020] EWHC 1394 (Admin) (also a case involving an immigration solicitor recorded by an undercover journalist, this time giving advice about sham marriages entered into for immigration purposes). At [115] the court stated:
“The SDT made a careful evaluation in its judgment and concluded that there was no abuse of process or prejudice to Mr Naqvi in the proceedings continuing in the absence of Client A, essentially for two main reasons: (i) that Ms Potts (Footnote: 8) had been able to answer questions that would have been put to Client A in cross-examination in relation to the alleged entrapment and there was nothing Client A could have added to the evidence she had given ([17.49] of the judgment) and (ii) that the SDT had the advantage not usually available to a fact-finding Court or Tribunal of a complete transcript of the relevant interviews between Mr Naqvi and Client A. I consider that this evaluative judgment by the SDT cannot be faulted.”
The position is the same here: the SDT had the recordings and the evidence of Mr. Grant. In any event, the Appellant was unable to establish that Client A would have had any relevant evidence to give regarding the authenticity of the recordings which had been immediately downloaded to Mr Grant's laptop and hard drive. She could not have tampered with recordings which were handed straight over to Mr Grant.
Mr Skeate also submitted that it was unfair that the SDT did not have evidence before it from the “accountant”. But the SDT had an audio/visual recording before it which showed the Appellant telephoning the “accountant” and introducing Client A to him. Beyond that, there was no relevant evidence that it was necessary for “the accountant” to give. In any event, had he wanted the accountant to give evidence before the SDT, the Appellant could have called him himself (or applied for a witness summons). He clearly had his telephone number.
Ground 5 is accordingly hopeless.
Ground 6: the Chair was wrong in refusing to stay the proceedings when there was serious lack of rigour by the SRA, more so by Capsticks who had practically taken over the matter when the SRA lost interest after 2 years of investigation.
The Appellant submits that he did not have the benefit of a fair trial which makes the ultimate decision unlawful. In oral submissions, Mr. Skeate put the Appellant’s case on two bases.
First, it was said that Client A should have been but was not interviewed. That is hopeless for reasons also ready articulated.
Second, it is said that the SRA ought to have been compelled to give disclosure of its audit of the Appellant’s firm (it was in fact a check of 10 randomly chosen client files held by the Appellant’s firm), which did not reveal any further wrongdoing. Mr. Skeate submitted that “there may be things in there that relate to whether it is plausible that [the Appellant] would act in the manner alleged by him, namely by way of play acting”. This is also hopeless. None of the documents in the 10 files reviewed were relevant (see paragraph 14 above) and the SDT knew that (although the SRA nonetheless disclosed some irrelevant sample documents from the audit). There is no unfairness.
Ground 7: the final decision was wrong also due to the way the chair proceeded with the case
This ground relates to the conduct of the chairman during the proceedings.
The Appellant makes thirteen submissions under this ground as follows:
The chairman readily accepted clear misstatements.
The chairman blindly dismissed various applications readily and in totality.
The chairman drew no conclusions against the prosecution regarding:
destruction or non-disclosure of evidence;
clear issues with the authenticity of recordings;
actions making forensic testing impossible;
reliance on unauthentic copies with dates and time being removed;
neither the Reporter nor anyone from the BBC exhibiting the recordings relied upon and the Reporter not giving evidence;
BBC Producer not defending a damages case decreed in the matter where it was alleged by A that the recordings were racially motivated, were unlawful
There was mis-recording of procedural decisions made in the hearing to help the prosecution.
The judgment preparation was left to the Tribunal clerk and the SRA representative.
relying on poorly and wrongly prepared Transcript through the SRA for use by the Tribunal in drafting the Judgement;
despite having decided that resumed cross examination of the SRA’s Investigation Manager should be in person, allowed it to be remotely and resulting in a deadlock due to which the resumed cross examination did not go ahead;
despite requests from A, refusing to conduct the final hearing in person, the Tribunal’s video link system failed and hearing being conducted over the telephone, depriving A of a proper opportunity to have his case heard properly and fairly;
taking A by surprise for the main hearing after a rushed through no case to answer hearing, offering no breaks against the medical advice, this was adhered to in the previous hearing. This was not pursued by Mr. Skeate;
rushed the final hearing over the phone to an early close despite a full day available depriving A of proper opportunity for being heard;
having proceedings in the absence of A when he fell ill and not in contact only for a few hours while in hospital emergency, and during this time issuing directions to help SRA in damage control after shocking revelations in cross examination by the SRA Investigation Manager who believed the statements of the SRA’s Solicitor made by her before the Tribunal and by her witness statement in the High Court, and he confirmed the opposite that: there were investigation findings on the actual case files of clients in 2017 at the firm’s office (all the findings were 100% positive); that the notes and findings and the investigation files were not lost; that these were not reconstructed; that there were no several searches made to recover the files (that were not lost); and that he was made aware of such false statements only at the hearing day.
not allowing A to put questions in cross examination to BBC’s Producer about other BBC’s tempered/fake videos that brought them embarrassment (like Primark’s fake video, fake bank statements in Lady Dianna case……), saying that these were high profile cases and are not relevant, thus prevented discussion of enormous material provided by A to show that BBC was notorious in making fake videos, admittedly;
suggesting the BBC Producer during cross examination that he would not know the answers to questions asked about the correspondence disclosed for the mysterious period of December 2018 to February 2020, while the witness was happily answering the questions put by A, and even repeated the answers. This was not pursued by Mr. Skeate.
Mr. Skeate submitted that these are all points where the SDT placed inadequate weight on the matters raised by the Appellant. However, as is discussed above, if the question is one of judgment about the weight to be given to the relevant evidence, the Court must be satisfied that the judge's conclusion cannot reasonably be explained or justified. An appeal court can set aside a judgment on the basis that the SDT failed to give the evidence a balanced consideration only if its conclusion was rationally insupportable. That high threshold cannot possibly be met by the Appellant in this case.
Mr. Skeate again argued that the SDT relied upon the recordings/transcripts to the exclusion of all else, such that the “play acting” and “research” defence was dismissed without any proper reasons being given.
As explained above, the SDT’s decision that the recordings were authentic was a finding of fact. It cannot possibly be said that that decision is one that no reasonable SDT could have reached: see paragraphs 48-56 above. The SDT’s conclusions in paragraphs 37.49 to 37.50 of its Judgment are accordingly rational and capable of reasonable explanation. It was plainly open to the SDT to conclude as follows:
“The Tribunal considered the various defences advanced by Mr Salam in writing and by way of submissions. The Tribunal rejected them in their entirety as inconsistent, totally implausible and disingenuous. Mr Salam’s contention that he was play-acting was at odds with the ebb and flow of his interactions with Client A which appeared natural and authentic.”
Mr. Skeate also submitted that the SDT failed to give sufficient weight to the comment “I’m so predictable” made by Client A to Mr. Grant when she got into his car after leaving the meeting. He submitted, as did the Appellant before the SDT, that this meant that the Appellant “saw through her.” The transcript of the hearing before the SDT records the following exchange in this respect:
“THE RESPONDENT (Footnote: 9): (To the witness) The reporter said to you when she came in the car to listen to the recording, “Oh I’m so predictable.” She also said before that “Oh thank God there are no CTTVs there.” So if she’s so predictable that it can be found easily that she’s not what she’s posing about, she doesn’t have a good cover. So why do you send someone who is so predictable people can find out that she’s not what she’s posing to be when she’s doing a secret investigation and she’s afraid of CCTVs?
THE CHAIR: I am sorry, forgive me. This is very difficult and I am trying not to stray into the realms of---
THE RESPONDENT: No worries.
THE CHAIR: But I want to put this question in a manageable form.
THE RESPONDENT: Please.
THE CHAIR: We watched the video recording and I did hear “Oh I’m so predictable” as the parties got into the car or were about to get into the car. So you are asking the witness if he can comment on what she meant by “Oh I’m so predictable.”
THE RESPONDENT: Yes.
THE CHAIR: (To the witness) Can you help us with that?
A. No, I can’t, sorry, it’s a long time ago and I’m not quite sure what she meant.
THE RESPONDENT: She is Pakistani, I am also Pakistani. We use these words interchangeably like “predictable” means someone who can be found out what he is. In English generally “prediction” means what will happen in the future.
THE CHAIR: Right.
THE RESPONDENT: It also means what is the actual position. So in other countries people use these terms a bit interchangeably.
THE CHAIR: This witness may not be able to help with that.”
The Appellant suggested that this meant that Client A knew that she was not a real client and that he was play acting, and so the SDT should have taken this into account. However, this argument did not even feature in the Appellant’s closing submissions before the SDT. Despite that fact, the SDT nonetheless adverted to this argument in its Judgment (see paragraphs 37.41 and 37.44) but concluded that it was “inconsistent, totally implausible and disingenuous.”
In my judgment, the SDT was right to give such short shrift to this supposed meaning of “I’m so predictable” in the recording. First, it took place once Client A was in the car and was not said to the Appellant. Second, there is nothing in the transcript to support the meaning attributed to it by the Appellant:
“(Outside the office the Reporter gets into a car.)
MALE VOICE 2: I was getting worried.
REPORTER: He had another client so I had to wait.
MALE VOICE 2: Yeah, because -
REPORTER: And as soon as you -
MALE VOICE 2: - I missed it, because it was on, it was on
silent, it was on silent and then -
REPORTER: Yeah, I rang, yeah.
MALE VOICE 2: - and then someone saw your call, yeah. And then
also, because I’d have [inaudible] so I’d have
to guess.
REPORTER: You’re so... I’m so predictable.
[Laughter]
MALE VOICE 2: And then, because I was suddenly… (inaudible)
OK, because we missed that call didn’t we, how
did it go?
REPORTER: (inaudible)
MALE VOICE 2: Oh fantastic.
REPORTER: He rang the accountant and we have got the
accountant’s details.
MALE VOICE 2: Wow, look at that, wow.”
Third, the Appellant chose not to give evidence, and so he was not cross-examined about his suggestion that this was all play acting.
As to the specific sub-grounds to Ground 7 contained in paragraph 70 above, each of them is hopeless:
The Appellant does not even identify the “misstatements” relied upon.
The applications are not identified and this consists of mere assertion in any event.
(a) There was no evidence of any destruction or non-disclosure of evidence; (b) the SDT was fully entitled to find as a fact that the recordings were authentic; (c) The Appellant established no rational basis for forensic testing; (d) This again relates to a hopeless challenge to the authenticity of the recordings; (e) the SDT had the recordings and the transcripts before it and Mr. Grant gave evidence as to their authenticity; (f) this is wholly irrelevant to the allegations against the Appellant in this case.
This is unparticularised. If, as appears to be the case, it relates to the SDT’s decision to hear the rest of Mr. Shield’s evidence remotely (which is also ground (vii)) then Mr. Skeate abandoned that ground. In any event, the Appellant had agreed to this course (see paragraph 19 above).
It is lawful for the narrative determination to be drafted by the SDT clerk and approved by the Panel: Rule 8(6)(h) of the Solicitors (Disciplinary Proceedings) Rules 2019. The SRA’s representative had no role in the preparation of the determination. Sending transcripts of the hearing to the SDT is not “preparing the SDT’s judgment.”
The Appellant does not identify which part of the transcript is said to be incorrect and in what way that inaccuracy has had any material bearing on the SDT’s decision.
Mr. Skeate did not pursue this sub-ground.
The SDT did conduct the final hearing at which closing submissions were made “in person”, as it directed. The Appellant elected not to attend in person. He had produced no medical evidence to explain why he could not attend in person. The SDT accommodated the Appellant’s decision. The Appellant claimed to have connectivity issues during the closings but he was able to join the hearing by telephone and to make his submissions in that way. The SDT had to decide between continuing with the hearing in a hybrid format or adjourning the hearing yet again. The proceedings had already been the subject of considerable delay. Having regard to all the circumstances, its decision to continue with a hybrid hearing (with the Appellant able to make his closing submissions by telephone) was entirely reasonable. The Appellant had already made extensive written and oral submissions and so his case was well understood. Moreover, there was no cross examination of any witnesses by this stage, only closing submissions.
As Mr. Tankel rightly submitted, the Appellant ought to have been prepared to continue with the substantive hearing after his recusal application was refused. The recusal application having been dismissed, there was no reason to adjourn at that stage. The Appellant had been given no indication that there would be an adjournment. On the contrary, he had made two last-minute applications to adjourn which had been rejected just prior to the resumed hearing. He made his recusal application on 5 February 2023 having had several months to prepare for the part-heard hearing and many more months to prepare for trial before that. There was no medical advice to suggest that there should be an adjournment.
The hearing was not rushed. The Appellant had numerous opportunities to put his case in full to the SDT.
This sub-ground was not pursued by Mr. Skeate.
Mr. Skeate said that he was “instructed to pursue” this sub-ground, but he was clearly embarrassed to have to make the submission. He accepted that whether to allow such matters to be put to Mr. Grant was obviously in the SDT’s discretion. Since Mr. Grant would have no knowledge of these matters and since they were irrelevant to the allegations levelled against the Appellant, the SDT’s handling of the cross-examination in this respect is not open to sensible criticism.
Mr. Skeate did not pursue this sub-ground.
Ground 8: the finding of dishonesty was wrong and unfair.
Ground 12: It was wrong for the Judge for brushing aside the principles regarding dishonesty as laid down by the Supreme Court in Ivey v Genting Casinos for A’s assertion that he believed (rightly) that the undercover reporter was not a real client and that there was no potential application or case and that the discussion was therefore more of loose talk and play acting from both sides and there could be no occasion for dishonesty and that he had regretted and apologised to the SRA in the earliest instance for any loose talk regardless of the visitor not being a real client.
This is a reference to Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 at [74]:
‘When dishonesty is in question, the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’
The SDT found as a fact that the Appellant had a dishonest state of mind and his conduct was objectively dishonest: see paragraph 37.57 of its Judgment. The SDT was fully entitled so to find and to reject the “play acting” defence as “inconsistent, totally implausible and disingenuous” and the research defence as “not remotely plausible, generally asserted and ridiculous”. Not only was the SDT not clearly wrong so to find but in my judgment it was clearly right to do so for the reasons set out above.
Ground 9: inconsistent findings
The Appellant complains that it was irrational to uphold Allegation 1.1.1 but dismiss Allegation 1.1.2 when the two concerned the same conduct. This is hopeless. As the SDT itself stated at [38.13]:
“Allegation 1.1.2 was inelegantly drafted and duplicitous in nature. The Tribunal considered that it added nothing to the gravamen of Allegation 1.1.1, was disproportionately and unnecessarily pursued.”
Ground 10: Mitigation and Sanctions, it was disproportionate to strike the Appellant off
Finally, the Appellant complains that the sanction – striking him off the Roll of Solicitors - was too harsh. Once again, it cannot be said that the SDT’s decision as to sanction is clearly inappropriate. On the contrary, I entirely agree with it.
So far as a SDT’s finding on sanction is concerned, an appeal court should only interfere with the SDT’s evaluative decision – and find that it was wrong - if it made an error of principle or if it fell outside the bounds of what it could properly and reasonably decide. It is plain that this is not such a case.
Thus, at [31] of Hewson, Pepperall J cited Bawa-Garba v The General Medical Council [2018] EWCA Civ 1879 in declaring as follows:
“In a joint judgment, the appeal court described, at [61], the tribunal's decision on sanction as "an evaluative decision based on many factors." There was, the court observed, "limited scope" for an appellate court to overturn such decisions. They added, at [67]:
"That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case,
which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts … An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide."” (emphasis added)
In Farquharson v BSB [2022] EWHC 1128 (Admin), Heather Williams J stated at [§63]:
“In relation to an appeal against sanction, it is well-established that whilst considerable respect should be paid to the sentencing decision of the Disciplinary Tribunal, the Court would interfere when satisfied that the sanction imposed was “clearly inappropriate”: Salsbury v Law Society [2008] EWCA Civ 1285; [2009] 1 WLR 1286 per Jackson LJ at para 30” (emphasis added).
In assessing the appropriate sanction in a case such as the present, as Popplewell J (as he then was) stated in Fuglers LLP v. Solicitors Regulation Authority [2014] EWHC 179 (Admin) at [28]:
"The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose a sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question."
That is what the SDT did in the present case. It rightly viewed the misconduct of the Appellant as being of the utmost seriousness. His dishonesty continued across two separate meetings. He sought to make a financial gain (£900) from his dishonest conduct. He knew that he was being dishonest (hence the references to “dodgy” behaviour). He was caught red-handed. He then tried to pull every trick in the book to delay or derail the disciplinary proceedings, including by the bringing of a whole series of meritless applications to the court. He then lied repeatedly about the authenticity of the recordings, despite choosing not to give any evidence himself.
Mr Skeate submitted that the SDT failed sufficiently to take into account that the Appellant had an unblemished 30 year career. This was, he submitted, a one-off incident, with no harm caused to anyone, and it was a “set-up” by an investigator who provoked the Appellant’s conduct.
I do not consider these factors to be sufficient to warrant only a suspension or a fine, as urged upon me by Mr. Skeate. Nor are any of them “exceptional” factors relating to the dishonesty. The dishonesty was grave, consisting of a solicitor actively urging his client (or the person whom he believed to be his client) to break the law. Nor is it a case of no harm being caused: the harm is to the integrity of the solicitor’s profession.
Further still, the Appellant has shown no insight into his behaviour. Indeed, even at the hearing before me, instead of admitting his guilt and making submissions on sanction, he maintained the ridiculous argument that he was merely play acting or conducting research at the meetings with Client A; but then said (through Mr. Skeate) that if I rejected his defence, he would want to make further submissions as to his remorse and “further insight” in an attempt to reduce the sanction. That is another example of the Appellant seeking to play fast and loose with the court, or of him playing the system. Moreover, as explained above in paragraph 10, not only does the Appellant continue to refuse to take responsibility for his dishonest behaviour, but he continues to seek to blame his behaviour upon others, accusing everyone else of fraud or misconduct (namely, Client A; Mr. Grant; the BBC; the SRA and the SDT including the Chairman personally). That is a strongly aggravating feature of the Appellant’s misconduct.
The misconduct of the Appellant is accordingly very serious. The SDT kept well in mind the purpose for which it imposes sanctions, as it recorded in paragraph 42 of its judgment:
“The Tribunal referred to its Guidance Note on Sanctions (Tenth Edition: June 2022) when considering sanction cognisant of the fact that the purpose of sanction was to preserve the overarching public interest which comprised of (a) the need to protect the public from harm, (b) the need to declare and uphold proper standards within the solicitor’s profession and (c) the need to maintain public confidence in the regulatory framework.”
The SDT then chose a sanction which most appropriately fulfilled that purpose for the seriousness of the conduct in question, namely removal from the Roll:
“43. Given the serious finding of dishonesty, it was plain to Tribunal that other measures such as making no Order, imposing a reprimand, financial penalty, restrictions on Mr Salam’s practice or a term of suspension from the Roll were neither appropriate nor proportionate.
44. The Tribunal found no exceptional circumstances either in the submissions that had been advanced by Mr Salam or evident on the face of the papers, and accordingly that the only sanction which sufficiently met the overarching public interest was an Order striking Mr Salam from the Roll of Solicitors.”
The SDT’s reasoning is not wrong and it cannot be faulted. This Ground accordingly fails.
Conclusion
In all the circumstances this appeal, which was bound to fail and which I certify as being totally without merit, is dismissed.
CO/1213/2023 / AC-2023-LON-000353
IN THE HIGH COURT OF JUSTICE
ON APPEAL FROM THE SOLICITORS DISCIPLINARY TRIBUNAL
IN THE MATTER OF an appeal pursuant to s.49 of the Solicitors Act 1974
B E T W E E N:-
SHEIKH ASIF SALAM
Appellant
- and -
SOLICITORS REGULATION AUTHORITY LIMITED
Respondent
_________________________________________________________
ANNEX 1: SUMMARY OF THE PROCEDURAL HISTORY
_________________________________________________________
SDT certifies case
Appellant makes application for specific disclosure for the documents relating to “negotiations” between SRA and BBC about Paul Grant’s witness statement; communications between the SRA and BBC about the latter’s contact with the accountant; an earlier FIR that the Appellant believes must have been produced; and evidence concerning the FIO’s consideration of individual client files.
Appellant makes application for proceedings to be stayed as abuse of process, for want of fair disclosure.
Appellant applies for two-week adjournment of the disciplinary hearing, due to commence on 30.10.2020.
SDT refuses specific disclosure and abuse of process applications.
Appellant applies for Judicial Review of (i) SDT’s refusal of specific disclosure and abuse of process applications and (ii) SDT’s decision to certify the proceedings (“JR1”)
Appellant applies for permission to rely upon expert forensic evidence regarding the recordings; renewed and expanded his request for specific disclosure; sought directions from SDT that SRA should be required to use its statutory powers to obtain information from the BBC; and sought disclosure of the identity of the undercover reporter and a summons requiring her attendance.
Appellant applies for adjournment of trial listed for 15-17 February 2021, because of outstanding 14.12.2020 application and outstanding JR1.
Appellant makes specific disclosure requests to SRA.
SDT refuses applications for expert, specific disclosure, and adjournment.
Appellant makes application for extension of time for providing witness statements, to give time to obtain identify and summons of undercover journalist.
Appellant applies to adjourn substantive hearing on 15-17.2.2021 on medical grounds.
SDT refused application for adjournment on medical grounds: insufficient evidence.
Appellant renews application to adjourn substantive hearing on 15-17.2.2021 on medical grounds, with further medical evidence.
SDT grants application for adjournment on medical grounds. The evidence remains insufficient but the SDT nevertheless wishes to ensure that “the Appellant is given every opportunity to participate in the proceedings”.
Appellant applies for JR of SDT’s decision dated 6.1.2021 (“JR2”)
Appellant applies to adjourn substantive hearing, on medical grounds.
SDT adjourns substantive hearing for 6 months, on medical grounds.
In JR2, Clive Sheldon KC grants permission concerning (i) SRA obtaining identity of undercover reporter from BBC and (ii) specific disclosure, but refused permission on (iii) expert evidence.
Appellant applies for stay of proceedings on grounds of abuse of process that material evidence about the recordings has been withheld/destroyed; alternatively for directions excluding the evidence of the recordings and the transcripts.
Appellant submits that SRA’s referral decision and SDT’s certification decision were both obtained based on fraudulent evidence.
Appellant also submits that SDT’s decision dated 30.10.2020 was based on untrue submission that the BBC had provided transcripts of the meetings.
Appellant applies at a CMH for adjournment of substantive trial pending the outcome of JR1 & JR2.
Permission for JR1 refused at an oral renewal hearing, by Swift J. The specific disclosure challenge was without merit (para 12) and without purpose (para 13). The grounds of the stay application were matters to be considered by the SDT at trial on its assessment of the merits (paras 16 and 18). The certification challenge was a repackaging of the abuse challenge (para 5).
Appellant seeks permission to appeal (“PTA”) to Court of Appeal against permission decision of Swift J in JR1.
Appellant seeks direction that recordings only admissible if provided with forensic evidence, and for specific disclosure of documents relating to authenticity of the recordings.
Appellant repeats the claim that SRA’s referral decision and SDT’s certification decision were both obtained based on fraudulent evidence.
Appellant repeats the claim that the SDT’s decision of 30.10.2022 was based on false submission.
SDT refuses: abuse of process application on ground that it was materially identical to the application determined on 30.10.2020; application to exclude evidence on ground that it was the same as the abuse application; application for expert on grounds that it had already been decided and new application was not substantially different; and various applications for specific disclosure.
Appellant seeks judicial review of SDT’s decision dated 9.11.2021 (“JR3”)
Appellant applies for adjournment of substantive hearing fixed for 4-8 April 2022, because of outstanding JR applications.
SDT grants adjournment application.
Mrs Justice Heather Williams refuses permission for JR3 and certifies it as being totally without merit.
JR2 (on specific disclosure and obtaining identity of undercover journalist) refused following substantive hearing before Mr Douglas-Jones KC.
Appellant applies for permission to appeal (“PTA”) to Court of Appeal in JR2.
Appellant applies to set aside decision of 30.10.2020 on grounds that it was obtained by fraud (the “set aside application”).
SDT returns set aside application on basis that it was an appeal against an earlier decision of the SDT, which it has no jurisdiction to determine.
Appellant applies for specific disclosure of “missing” telephone attendance notes.
Appellant applies to adjourn this hearing on basis of outstanding PTA applications; outstanding SDT applications.
Appellant seeks judicial review of SDT’s decision to return the “set aside application” (“JR4”), and applies for interim relief adjourning trial until JR5 is resolved.
Appellant applies to set aside certification decision of 23.10.2020.
SDT refuses applications for adjournment and specific disclosure.
Appellant seeks judicial review of SDT’s decision to refuse applications for adjournment and specific disclosure, and seeks urgent interim relief adjourning trial until the outstanding applications for PTA and other procedural applications before the SDT are resolved (“JR5”).
Mr Justice Kerr refuses applications for interim relief in JR4 and JR5 and certifies them TWM; refuses permission in JR4 and JR5.
On day 1 of hearing, Appellant applies for adjournment, on similar grounds. SDT dismisses application.
On day 2 of hearing, hearing adjourned part-heard due to Appellant’s claimed ill-health. The matter was adjourned to 4 November 2022 for a case management hearing.
Appellant applies to the SDT for directions requiring the SRA to carry out further investigations. SDT dismisses application on the basis that it is for the SRA, not the SDT, to carry out investigations and decide how best to present its case.
Appellant applies to SDT to adjourn part-heard hearing due to ill-health. SDT dismisses application.
Appellant applies to High Court to set aside earlier judgment on grounds that it was obtained by fraud. Applies for interim relief restraining the remainder of the hearing from resuming.
Appellant applies to SDT to adjourn part-heard hearing because of outstanding High Court application. Application dismissed.
Appellant applies to SDT for Panel chair to recuse himself and for hearing to be commenced afresh. Application dismissed.
Appellant applies to SDT to adjourn remainder of the hearing on grounds that (a) he is not ready and (b) he was expecting Mr Shields to attend to be cross-examined in-person. Application dismissed.
Hearing concluded and decision announced.
Reasons for decision promulgated.
Hearing of this appeal.