Briefing paper on the SRA s consultation on character and suitability for admission to the profession

Transcription

1 ANNEX 1 RAG Item 7 Briefing paper on the SRA s consultation on character and suitability for admission to the profession Introduction 1. The SRA s guidelines for assessing character and suitability are set out as five tests. These are stated in terms of confidence and risk as follows: 1. Is there confidence the applicant is trustworthy and honest? 2. Is there confidence the applicant is willing to comply with legal and regulatory requirements? 3. Is there confidence the applicant is able to manage responsibly financial affairs? and 4. Is there a risk that the applicant s admission would diminish public confidence in the solicitor s profession? 5. Is there a risk that the individual s admission could cause harm to members of the public, the profession or him or herself? 2. The guidelines operate on the basis that the application should be refused unless there are exceptional circumstances (not defined) and suggests what evidence may establish confidence or address the risk. 3. The tests are drawn from similar questions asked at the point of student enrolment. 4. The Guidelines have been operating on a pilot basis since June 2006 and the SRA reports that they have been working well. 5. In principle, it appears that the guidance is an appropriate way forward for the profession and the main issue appears to be how the tests are formulated. Background information and some comparisons 6. With applications to practice in England and Wales, under the qualified Lawyers Transfer Regulations 1990, foreign lawyers, including those in the European communities, Scotland, Ireland, Northern Ireland and those admitted to the Bars in England and Wales and Ireland have to apply to the Law Society for a certificate of eligibility before they can take the test. This will be issued on if the Law Society considers the applicant is suitable to be admitted as a solicitor. The emphasis is on the academic requirements. If the Law Society is not satisfied as to suitability, the applicant can ask for a review. Subsequently if any prohibition or sanction is applied, the lawyer can ask for it to be removed on three separate occasions, at yearly intervals. This is a wide, undefined test. The provisions for review are of interest.

2 7. The Establishment Directive allows a lawyer of one state registered under the directive to practice in another registered state under his/her own title, as Registered European Lawyers. The countries (ie the states) are listed. Separate rules apply to Registered Foreign Lawyers. The Directive says that criminal record checks will be carried out, which include checks in the home state. For RFLs, a certificate of good standing is required from each law society, bar or chamber to which s/he belongs, that is not more then three months old, confirming that the applicant is of good character and repute, there are no proceedings against him/her amounting to professional or other misconduct and that s/he is currently entitled to practice in that jurisdiction. Again, the test is unrefined. The incorporation of time restraints on references is of note. 8. The Law Society of Scotland (LSS) requires evidence that a prospective trainee is a fit and proper person to become a solicitor. It ensures that any person applying to practice as a solicitor in Scotland maintains the standard of honesty, integrity and professionalism expected by the public and other members of the profession, and does not pose a risk to either the public or the profession. Their assessment takes account of anything that might cast doubt on the suitability of the entrant to meet and maintain high ethical standards. Any fact or circumstance that might lead to the entrant being struck off the roll or suspended or having conditions on the practicing certificate, or having it revoked or withheld is likely to be relevant to the question of fitness. Examples of unfitness are conviction for a criminal offence, insolvency or mental health. Also taken in to account are evidence of a lack of probity (including failure to tell the truth, plagiarism or cheating in exams), disregard for the rule of law, intemperate or discourteous behaviour (such as ASBO s) or lack of judgment or self control. A copy of the guidance notes for applying these criteria is attached at Annex 3. You will see that, to an extent, these provisions are reflected in the proposals from the SRA, although the LSS is more extensive in some areas- for example, in taking in to account spent convictions, police warnings and fiscal fines. 9. Applications for judicial office also require evidence of good character. Similar areas are looked at, namely criminal convictions (which extend to motoring offences, cautions, spent and older convictions), insolvency and bankruptcy, VAT and tax, professional negligence, disciplinary action and further information, examples of which include a controversy in which the applicant is involved or conduct of close relatives or business partners. The guidance appears at Annex 4. It is more extensive than the tests proposed by the SRA, as are the objectives, which are to maintain public confidence in the judiciary, meaning office holders and those aspiring to such office maintain the highest standards of behaviour in their professional, public and private lives. To a certain extent this may be expected, although solicitors who, as it says, aspire to judicial office, will have to meet these criteria in any event. Discussion 10. Character and suitability tests for the LSS and judicial office are similar to those proposed by the SRA, although the latter are more extensive. Therefore, the tests proposed by the SRA appear to be based on the

3 appropriate areas. Two (linked) questions follow: Do the test areas need to be extended? and, Are the criteria suggested and the references to exceptional circumstances to depart from the guidance the correct ones to apply? 11. the two questions will be addressed for each test area: 1. Trustworthy and honest: reference is made to convictions for offences of dishonesty. It is considered that this is too restrictive and the Law Society should be made aware of all convictions and cautions. The approaches adopted by the LSS and the Judicial Appointments Commission are useful, in that it envelopes all convictions, then gives discretion to exclude certain matters. It is considered that this approach has merit as it allows a full picture to be presented in order to make a fully considered opinion. For example, a conviction for racial harassment is a matter which is clearly important.. It is important that the SRA has access to all convictions, not just those relating to dishonesty, so it can decide what information is important, rather than the applicant. Accordingly, it is suggested that the proposed wording should be extended. 2. Whilst there is no objection to taking in to account evidence of rehabilitation and the applicants own statement of the events and attitude towards them, these should not dilute the conviction itself and the public s opinion of it. It may meet principles of natural justice to allow this information to be supplied. However, it is considered that the overriding principles that these tests are designed to achieve, are paramount and that the additional information is therefore if limited value. 3. The LSS s reference to lack of probity is a useful addition. 4. Compliance with legal and regulatory requirements: the criteria appear to cover relevant areas. It is suggested that any evidence in support is no more than say, three months old and should be extended to all regulatory entities and professional bodies of which the applicant is a member. It is noted that the JAC refers to consideration of complaint records. This is unlikely to be relevant to first time applicants, but would apply to others. This is a useful measure and should be included. (It is particularly relevant as there are proposals for the LCS to publish data on complaints against a solicitor). 5. Management responsibly of financial affairs: it is considered that the reference to bankruptcy and IVA is too restrictive. It does not acknowledge changed public perception and the increasing use of them for general debt management, for example, by students seeking to remove debts incurred during training. It is proposed that the reference is expanded to take these factors in to account, so it is not a bar to admission. The JAC takes VAT and tax matters in to account and these appear to be an appropriate addition to the test.

4 6. Public confidence in the profession: Adverse decisions of professional negligence would also be relevant for those not applying for first admission, and should be included. 7. Admission would cause harm to the public, profession or applicant: whilst the approach is seen to be broadly correct, it is considered that the LSS s references to disregard for the rule of law; intemperate or discourteous behaviour (such as anti-social behaviour orders); or lack of judgement or selfcontrol, are useful additional safeguards. 8. General comments: it is proposed that the reference to exceptional circumstances should be removed as it suggests a degree of flexibility that is not required if the evidence and criteria are stated clearly. It is proposed that any evidence supplied should be recent, say no more than three months old. The tests are written from the perspective of a new applicant for admission and should be expanded to cover applications under the QLTT and for registration as REL s and RFL s. 9. It is proposed that the response to the SRA is to approve the proposals subject to the matters outlined above.

5 ANNEX 2 Character and suitability guidelines 2 February 2007 Under the Solicitors Act 1974, as well as the Training Regulations 1990, the Qualified Lawyers Transfer Regulations 1990 and the Admission Regulations 1994, the Solicitors Regulation Authority (SRA) is obliged to ensure that, before admission, an individual is of the character and suitability to become a solicitor. There is no definition of 'character and suitability' in the act nor in any of the regulations. We consider that the character and suitability of individuals is at the heart of our drive to set clear, transparent and proportionate standards for solicitors and those who aspire to enter the profession. The development of 'fit for purpose' guidelines was one of our earliest priorities. We consider that the objectives of our scrutiny of an individual's character and suitability should be protection of the public upholding the rule of law promoting the public's confidence in the honesty, integrity and professionalism of solicitors The draft guidelines have been piloted since June 2006, to enable us to be satisfied that they do not present insurmountable operational difficulties. We are now satisfied that they are workable, and are therefore keen to engage all of our stakeholders to obtain views and suggestions for refinement of the guidelines. In particular, we are keen to hear the views of stakeholders on whether the guidelines achieve the objectives stated above. We will, of course, keep the guidelines under constant review to ensure that they remain fit for the crucially important purpose they are designed to meet. The consultation period ends 27 April Guidelines on the assessment of character and suitability 1. Introduction 1.1 The Solicitors Act 1974, the Training Regulations 1990, the Qualified Lawyers Transfer Regulations 1990 and the Admission Regulations 1994 place an obligation on the Law Society Regulation Board (which will become the Solicitors Regulation Authority (SRA) in January 2007 and is referred to throughout these guidelines as SRA ) to ensure that before admission an individual is of the character and suitability to become a solicitor. This requirement holds true for an individual throughout the qualification process, although the construction of the Regulations means that issues of character and suitability are likely to be considered at specific points in this process eg applications for enrolment or admission. Neither within the Solicitors Act 1974 or the SRA s Regulations is the term character and suitability defined.

6 1.2 The SRA s role is to ensure that an individual admitted as a solicitor has the level of honesty, integrity and professionalism expected by the public and other stakeholders, as well as other members of the profession, and does not pose a risk to the public or the profession. 1.3 Character and suitability issues are considered mainly as a result of self declaration at the student enrolment or admission stage, although some are also considered as a result of direct referral from other organisations, such as training establishments, the police or universities. Character and suitability is also considered as part of the application process under the Qualified Lawyers Transfer Regulations, or applications in relation to the Establishment Directive. The SRA reserves the right to verify the information volunteered by the applicant. As explained below, the SRA regards failure to disclose information as evidence that an applicant might not be of acceptable character and suitability. 1.4 The following questions are asked at the point of student enrolment: i) Have you ever been convicted of an offence in any court of the UK or elsewhere (other than a motoring offence which did not result in disqualification)? ii) Have you ever committed an act of plagiarism or cheating in any form of assessment? iii) Are there any other factors, such as bankruptcy, County Court Judgements or any other matter relating to your character and suitability to become a solicitor which should be considered? 30/01/2007 Page 2 of 7 iv) Are you or have you ever been under investigation by a professional/regulatory body in the UK or any other country? v) Have you ever been criticised, censured, disciplined, suspended or the subject of any other disciplinary activity by a professional/regulatory body in the UK or any other country? vi) Have you ever been subject to an investigation about alleged misconduct or malpractice in connection with a business activity? 1.5 Instances in relation to any of the above issues warrant investigation and assessment. These guidelines detail the underlying approach that is to be taken in all such circumstances. 2. General principles for assessment 2.1 The consideration of character and suitability issues is a process that is based primarily on a risk assessment of the individual and the danger he or she may pose to clients, to the public s confidence in the profession or the legal process and to the confidence of the profession itself. The objective is to ensure that those admitted to the Roll of solicitors have a level of honesty, integrity and professionalism expected by the public and members of the profession. An applicant should only be admitted to the Roll of solicitors where there is confidence that he or she is of appropriate character and suitability. 2.2 Before admitting an individual to the Roll, or allowing him or her to proceed towards admission, it should be established that, taking into account the past and current behaviours, there is confidence that the individual is: honest and trustworthy; and willing to comply with regulatory requirements; and able responsibly to manage financial affairs for themselves and clients;

7 and that there is no reasonable risk that his or her admission will: diminish the public s confidence in the solicitors profession; or be harmful to members of the public, the profession or to him or herself. 2.3 When considering an application against these criteria the SRA will apply the following tests. 30/01/2007 Page 3 of Is there confidence that the applicant is trustworthy and honest? 3.1 Unless there are exceptional circumstances there will not be confidence if the applicant has: convictions for offences involving dishonesty; deceived or sought to deceive others, eg academic authorities (see note at end) or employers. 3.2 In such cases, unless confidence can be established, the application should be refused. 3.3 The following might enable confidence to be established in the applicant s trustworthiness and honesty: the behaviour occurred many years ago and there was subsequent evidence of rehabilitation; the incident was not of a serious nature, as indicated by the sentence or sanction applied. 3.4 The evidence considered should include the following: at least one independent account of the event(s), including sentencing remarks following a criminal conviction; references from at least two independent people who know the applicant well and are familiar with the matters being considered. Ideally one of the references should be provided by a solicitor of good standing; evidence of rehabilitation eg probation reports, references from employers; the applicant s account of the events and attitude towards them. 4. Is there confidence that the applicant is willing to comply with legal and regulatory requirements? 4.1 Unless there are exceptional circumstances there will not be confidence if the applicant: has been convicted of a criminal offence; has failed to disclose information to a regulatory body when required to do so, or has provided false or misleading information; has breached the requirements of a regulatory body; has failed to comply with the reasonable requests of regulatory body. 30/01/2007 Page 4 of In such cases, and unless confidence can be established, the application should be refused. 4.3 The following might enable confidence to be established in the applicant s willingness to comply with legal and regulatory requirements: the incident occurred many years ago and there is evidence of rehabilitation; a matter that was not disclosed was trivial or occurred many years ago or the breach was not serious, as indicated by any sanction; the incident was the result of a genuine mistake or oversight. 4.4 The evidence considered should include the following:

8 the material itemised at paragraph 3.4 above in relation to a criminal offence. certificates of standing or statements from the relevant regulatory body or disciplinary tribunal and any limitations on the applicant s rights to practise/freedom to act; the applicant s explanation for his or her failure to comply. 5. Is there confidence that the applicant is able to manage responsibly financial affairs? 5.1 Unless there are exceptional circumstances there will not be confidence that the applicant can manage responsibly financial affairs if: the applicant has been made bankrupt, has entered into individual voluntary arrangements or has unmanageable debts arising from the applicant s recklessness, incompetence or dishonesty; the applicant has deliberately sought to avoid responsibility for their debts; there is evidence of dishonesty in relation to the management of finances. 5.2 In such cases, and unless confidence can be established, the application should be refused. 5.3 The following might help to establish confidence in the applicant s ability to manage financial affairs: the bankruptcy/debts occurred many years ago and there is evidence of subsequent sound financial management and conduct and that creditors have been repaid; 30/01/2007 Page 5 of 7 the applicant was affected by exceptional circumstances beyond his or her control or which he or she could not have reasonably have foreseen. 5.4 The evidence considered should include the following: credit check information; the applicant s explanation of event, corroborated where possible; actions taken to clear any debts. 6. Is there a risk that the applicant s admission would diminish public confidence in the solicitor s profession? 6.1 Unless there are exceptional circumstances there is a risk that public confidence in the profession would be diminished by the following: the admission of an individual who had served a prison sentence, who remained on licence or who was listed on the sexual offences register; the admission of an individual who had misused his or her position, particularly if associated with the provision of legal services, to obtain pecuniary advantage; the admission of an individual who had been responsible for dishonest or violent behaviour; the admission of an individual who had been convicted of offences associated with obstructing the course of justice; the admission of an individual who had been convicted of a racially motivated offence. 6.2 In such cases, unless the risk can be addressed satisfactorily, the application should be refused. 6.3 The risk might be addressed satisfactorily if:

9 the misbehaviour occurred many years previously and there was subsequent evidence of rehabilitation the misbehaviour was not of a serious nature, as indicated by the sentence or sanction applied. 6.4 The evidence considered should include: independent accounts of the convictions and behaviours that have given rise to the concerns, eg sentencing remarks. 30/01/2007 Page 6 of Is there a risk that the individual s admission could cause harm to members of the public, the profession or him or herself? 7.1 Unless there are exceptional circumstances to consider there will be a risk if there is evidence: that the applicant is or has been dependent on drugs or alcohol; that the applicant s mental health or exposure to stressful situations can seriously impair his or her judgement, and/or ability to manage his or her work and/or professional relationships; that the applicant has been violent with colleagues or clients. 7.2 In such cases, unless the risk can be addressed satisfactorily, the application should be refused. 7.3 The risk might be addressed if: the behaviour/dependency/illness occurred many years ago and there has been no subsequent cause for concern. 7.4 The evidence considered should include: recent and medical reports including psychiatric reports where relevant; accounts from employers and other parties; a statement from the applicant; any other evidence that might be indicative of recurrent illness or dependency concerns 30/01/2007 Page 7 of 7 Notes 1. Where a conviction or disciplinary hearing is being considered the SRA will not question or look behind the finding, although material such as sentencing remarks and explanatory statement will be considered. 2. Where the matter being considered concerns academic misconduct the SRA will take into account the range of academic offences that occur. For the purposes of the assessment of character and suitability to become a solicitor there will be particular concern where academic offences have been: deliberate and dishonest acts committed in order to achieve personal gain or advantage In assessing whether this is the case, the following factors would be of particular interest: the extent to which the individual was aware of the rules and procedures governing the referencing of material, or the use of group work or collaborative material; the extent to which the individual could reasonably have been expected to realise that the offence did not constitute legitimate academic practice; the extent to which the individual acted with intent to deceive; the degree of benefit or advantage gained as a result of the offence. As in the approach to consideration of criminal convictions, the assessment

10 will not seek to re-open the investigation undertaken by the training organisation, nor will it cast doubt on the veracity of the decision taken, providing appropriate investigation and disciplinary proceedings were followed, but statements intended to explain or mitigate the conduct in the issue will be considered.

11 ANNEX 3 Page 1 GUIDANCE NOTES FOR APPLICANTS RELATING TO THE CRITERIA APPLIED BY THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND IN CONSIDERING WHETHER AN INTRANT IS A FIT AND PROPER PERSON TO BE A SOLICITOR INTRODUCTION Section 6 of the Solicitors (Scotland) Act 1980 ( the 1980 Act ) provides that a person shall not be admitted as a solicitor unless (inter alia) he has satisfied the Council that he is a fit and proper person to be a solicitor and obtained from the Council a certificate ( Entrance Certificate ) to that effect. With a view to promoting consistency and transparency in decision-making, the Council of the Law Society of Scotland ( the Society ) has issued the following guidance for intrants as to how questions of fitness for admission will generally be addressed. However, it should be emphasised that each case will be considered on its own merits, and nothing in this guidance should be construed as creating a rule or formula for making decisions. One of the Society s many roles is to ensure that any person who practices as a solicitor in Scotland maintains the standard of honesty, integrity and professionalism expected by the public and other members of the profession, and does not pose a risk to either the public or the profession. In the case of an intrant under the 1980 Act, any assessment of the standard required envisages the taking into account of anything which casts doubt on the suitability of the intrant to meet and maintain the high ethical standards which both the public and the profession expect. Without prejudice to that generality, logic demands that any fact or circumstance which, in the case of a solicitor, might lead to him: being struck off the Roll or suspended from practice, or having his practising certificate revoked, withheld, or issued subject to conditions, is also likely to be relevant to the question whether an intrant is a fit and proper person to be admitted. Examples of such matters, discussed further below, include: insolvency, mental health, and any convictions for a criminal offence. The Society may also take into account (as it can in disciplinary matters) evidence indicating: Lack of probity (this expression is not limited to stealing or telling lies; it includes a failure to tell the whole truth, and any conscious act or omission which might mislead another person, including plagiarism or cheating in exams); Page 2 disregard for the rule of law; intemperate or discourteous behaviour (such as anti-social behaviour orders); or lack of judgement or self-control. A) BANKRUPTCY/INSOLVENCY/TRUST DEED Solicitors are people of business, and the public has a right to expect that a solicitor can responsibly manage financial matters. Insolvency can arise in many different ways, involving varying degrees of personal responsibility on the part of the individual. In cases involving such financial matters, particular attention will be given to the following issues:

12 has there been dishonesty on the part of the intrant at any stage? do the circumstances cast doubt on the intrant s judgement? what steps have been taken to meet outstanding debts? B) MENTAL HEALTH In issues involving mental health the Society, if made aware of any mental health issues, is likely to require professional (psychological/psychiatric) reports in order to reach a proper assessment. C) CRIMINAL CONVICTIONS References to convictions include all unlawful conduct, whether criminal or civil and whether or not it has been the subject of prosecution/litigation. A Disclosure Scotland Form is obtained for every intrant, and may disclose information other than criminal conviction, including police warnings or fiscal fines. The relevance of any criminal conduct is that it reflects (or might reflect) upon the attitude of the intrant towards the law; it is a fundamental expectation of society that solicitors will uphold the rule of law and obey it themselves. The significance of the effect which such issues can have on the question of suitability for admission, is underlined by the fact that intrants cannot rely on the Rehabilitation of Offenders Act 1974, to withhold details of a conviction which is otherwise regarded as spent under that Act (See Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003). However, just as a conviction will not necessarily lead to a solicitor being struck off the roll or suspended, so an intrant will not necessarily be prevented from proceeding to admission by reason only of having one or more convictions. Factors to be taken into account include: the number and nature of the convictions, and the sentence(s) imposed; Page 3 the time elapsed since the last (or only) conviction, and what the intrant has been doing in life during that time; the age of the intrant at the time of the offence(s); the circumstances of the offence(s); whether the intrant cooperated with the police and the courts. Convictions are not directly relevant in themselves; they are only relevant in so far as they affect the question whether or not the intrant is a fit and proper person to proceed to admission. Thus, the existence of convictions will always raise the question of fitness for admission, and the circumstances will normally need to be investigated further before a decision is made. An isolated offence, committed in exceptional circumstances, might not be a bar to admission even if it occurred quite recently; but an intrant with even a single conviction for an offence suggesting lack of probity is likely to have to provide persuasive arguments to convince the Society that he or she is a fit and proper person to be a solicitor. Where the offences, or any of them, suggest a lack of probity (and thus tend to cast doubt on the integrity of the offender) the penalty imposed by the court provides little assistance in considering that issue. The whole circumstances may need to be carefully scrutinised. Minor Offences Where an intrant has convictions for minor offences, such convictions are unlikely (in themselves) to be a bar to admission unless: they, or any of them, suggest a lack of probity (including any kind of deceptive behaviour such as displaying an incorrect vehicle excise licence), or their number and/or frequency suggests a pattern of unlawful behaviour which casts doubt on the intrant s regard for the rule of law. Traffic Offences Isolated traffic offence will not normally be a bar to admission, but: multiple offences (on the same occasion or separately); offences involving a serious disregard for the safety of the public (such as those concerning driving under the influence of drink or drugs, where the level of

13 impairment was substantial, or driving without insurance); and offences involving an attempt to obstruct or pervert the course of justice (such as refusing to provide a specimen or giving a false name) will generally be regarded as serious matters. Traffic offences leading to imprisonment will be dealt with as indicated below. Violence and Public Disorder Involvement in offences of this type (all forms of assault, breach of the peace, and the like) raise a suspicion of a lack of self-control or a willingness to engage in lawless activity. Nevertheless, isolated offences of this kind, not resulting in imprisonment, will not necessarily be a bar to admission. However: multiple offences (on the same occasion or separately); Page 4 offences resulting in serious injury to the victim; and any offence aggravated by an attempt to obstruct or pervert the course of justice will generally be regarded as serious. Offences leading to imprisonment will be dealt with as indicated below. Offences Affecting the Administration of Justice Offences of this type will always be regarded as more serious, even if the penalty imposed by the court was modest; they are contrary to the whole ethical basis of the solicitors profession. The group comprises: any offence (however it may have been categorised by the courts), and any other act or omission (whether or not it led to a prosecution) which involved an attempt to undermine the due administration of justice. The following list contains examples but is illustrative rather than exhaustive: perverting or attempting to pervert the course of justice; perjury; any attempt to influence witnesses either to give evidence, or not to do so, or to modify their evidence; giving false information (including false name) to the police; using documents (such as, but not limited to, vehicle excise licences or insurance certificates) fraudulently. An intrant with even a single conviction of this kind is likely to find it difficult to persuade the Society that he is a fit and proper person to be a solicitor, unless: there were wholly exceptional mitigating circumstances, or a significant period of subsequent law-abiding life demonstrates that the conviction is no longer a reliable indicator of his fitness for admission. Offences Leading to Imprisonment (Immediate or suspended) This section covers all offences leading to imprisonment (immediate or suspended), other than those dealt with above. In general, offences which lead to a sentence of imprisonment suggest either a single very serious offence or a series of offences which together may indicate a serious disregard for the rule of law. As in other areas, there can be no rigid rules, but an intrant who is currently serving a custodial sentence or who: is subject to a suspended sentence, or has been released on parole and is still liable to recall, or has served a custodial sentence within the last five years, is likely to find it very difficult to persuade the Society that he is a fit and proper person to be a solicitor.

14 Page 5 Where a custodial sentence has been served in the more distant past, the Society will carefully examine the whole circumstances; the potential variety of circumstances is so enormous that no further meaningful guidance can usefully be given. D) ONUS OF PROOF The onus is always upon the intrant to satisfy the Society that he is a fit and proper person to be admitted. The Act does not say that the Council of the Law Society may refuse to issue the relevant certificate if it is satisfied that the intrant is not a fit and proper person to be a solicitor; it says that a person may not be admitted unless he has satisfied the Council that he is a fit and proper person to be a solicitor. So, in any of the examples outlined above which require further investigation, it is for the intrant to establish, on the balance of probabilities, that he is a fit and proper person to be admitted as a solicitor.

15 Annex 4 Good Character Guidance Introduction 1. The Judicial Appointments Commission (JAC) is required under section 63(3) of the Constitutional Reform Act to select people for appointment who are of good character. This guidance will help you to decide whether there is anything in your past conduct, or present circumstances (eg business connections) which would affect your application for judicial appointment. The principles the JAC will adopt in determining in good character are: the overriding need to maintain public confidence in the standards of the judiciary; and that public confidence will only be maintained if judicial office holders and those who aspire to such office maintain the highest standards of behaviour in their professional, public and private lives. 2. Notwithstanding the above, there may be occasional lapses in conduct declared by candidates for judicial office which may be disregarded. The JAC will take into account the whole picture of a candidate s character when deciding whether that person is suitable to hold judicial office. If, having read this guidance, you would like to discuss any of the character issues with a member of the JAC s staff, you should contact Lee Hughes, Director of Court Appointments at the JAC. Eligibility for appointment to judicial office on character grounds 3. This guidance deals with issues which may determine whether you are eligible for appointment to judicial office on character grounds. This decision will usually be taken at the start of the selection exercise by the JAC. If the JAC considers that you do not meet the high standards required of judicial office holders your application will not be allowed to proceed. Criminal convictions 4. It is likely that any criminal conviction which has resulted in the imposition of a term of imprisonment will disqualify you for appointment to judicial office. Only in the most

16 JAC Good Character Guidance exceptional circumstances will the JAC allow an application to proceed from someone who has served a term of imprisonment. 5. A criminal conviction which has not led to a term of imprisonment is also likely to disqualify you from appointment to judicial office. However, the JAC will apply the following guidelines: offences which have resulted from an isolated indiscretion may be disregarded after 20 years, if there has been no repetition of the conduct; it may disregard isolated minor convictions after 10 years; isolated offences (other than motoring offences see paragraph 9 below) dealt with by way of an administrative penalty such as a fixed penalty notice may be disregarded after 3 years. Cautions for criminal offences 6. A formal caution is an admission of guilt by the person concerned. Therefore, the JAC will treat a caution in the same way as a conviction. Motoring offences Convictions for motoring offences (other than parking offences) should be declared in the section relating to criminal convictions The JAC treats a conviction for driving whilst under the influence of alcohol or drugs very seriously and such a conviction would usually disqualify you from consideration for judicial appointment for 20 years from the date of conviction Any motoring conviction leading to a term of imprisonment (dangerous driving for example) will be treated in the same way as any other criminal conviction which has led to imprisonment A disqualification from driving will usually lead to a disqualification from consideration for appointment to judicial office for three years after the licence has been regained. Other motoring offences will be considered in the circumstances of the case. Offences dealt with by way of fixed penalty which do not lead to disqualification may be disregarded in the discretion of the JAC. Insolvency and bankruptcy

17 11. The JAC will consider the appointment to judicial office of an undischarged bankrupt or someone who has an outstanding Individual Voluntary Arrangement on the circumstances of the case. You should provide full details of the circumstances with your application. 2 JAC Good Character Guidance VAT and tax The JAC will expect you to maintain your VAT and tax affairs in good order. Occasional administrative penalties for late payments will not disqualify you from selection. However, county court judgements, or actions taken in the courts to pursue you for payment, may disqualify you for appointment for a period, which will depend on the specific circumstances of the case Where action is taken against your company or firm rather than you as an individual, the JAC may take this into account depending upon the degree of personal culpability involved. Professional negligence 14. The JAC will consider the specific detail of each case of a finding of professional negligence. It is not possible to offer detailed advice on this matter. Factors the JAC will consider will include the degree of personal culpability involved. Disciplinary action 15. The JAC will consider the specific details of each case of a professional body upholding a disciplinary complaint against you. It is not possible to offer detailed advice on this matter. Factors the JAC will consider will include: a recognition that some people, by the nature of their work, are likely to receive a greater number of complaints than (for example solicitors working in others criminal or mental health practices); the number of complaints upheld; the action taken by the professional body; your personal culpability;

18 whether it is a service finding i.e. a finding of inadequate professional services or a finding of misconduct. 16. If you are debarred from practice in your profession, you will not be considered for judicial appointment until you have been reinstated and have a track record of five years without further incident. Further information You are also asked on the application form whether there is anything you want to bring to the attention of the JAC. Whilst it is not possible to be definite about what could be relevant here, examples might be issues of controversy in which you are involved or the conduct of close relatives or business partners You should note that the Rehabilitation of Offenders Act does not apply to judicial appointments and all convictions and cautions should be disclosed, even if spent under the Act. Checks with the police, professional bodies and HM Revenue and Customs are 3 JAC Good Character Guidance undertaken prior to appointment. The failure to declare on the application form information later disclosed by the agencies may be considered to be attempted deception which would rule out your appointment. Use of character information in the assessment of qualities 19. The JAC considers that information supplied in answer to the character questions on the application form may well provide evidence relevant to the qualities the JAC is looking for in it recruitment exercises. Therefore the information may be used by the selection panels when considering how well you meet the qualities as advertised for the office in question. 7 Novemb er 2006

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