Bringing criminal proceedings

Introduction

Purpose and status of this guidance

We explain in this document our approach to bringing proceedings against individuals who have committed certain criminal offences. These include:

  • individuals who we do not regulate, but who have pretended to be solicitors or entitled to carry out activities for which they need to be authorised, when they are not;
  • those we do regulate and who have taken certain steps which undermine our regulatory role.

This guidance should be read in the context of our rules, decision making at the SRA and other guidance documents. It is a living document and will be reviewed and updated as appropriate. It reflects our approach to our regulatory role, and any departure must be capable of justification on the individual facts of the case.

Our power to commence criminal proceedings

We have power to commence a number of different types of proceedings under the legislation dealing with the regulation of legal services, mainly the Solicitors Act 1974 and the Legal Services Act 2007. This involves us laying information and a summons, usually in the magistrates court for the area where the offence took place.

We can bring criminal proceedings when:

  • an unqualified persons has acted as a solicitor1 or pretended to be or used the title, or a description, implying that they are a solicitor2
  • individuals or firms have carried on a reserved legal activity, or pretended to be entitled to do so, when not entitled3
  • individuals have failed to disclose the fact that they have been struck off or suspended from the roll by the Solicitors Disciplinary Tribunal when seeking or accepting employment by a solicitor or a firm4
  • individuals have sought or accepted employment or payment from a solicitor or a firm when they are subject to a section 43 order, without previously informing them of the order5  
  • a firm (including a sole solicitor’s practice) has described itself or held itself out as being recognised when it is not6 or implied that is qualified or recognised by law as qualified to act as a solicitor when it is not.7

We can also bring criminal proceedings in respect of certain failures to cooperate with us as a regulator, including where individuals or firms:

  • knowingly, or in some instances recklessly, provide to us false or misleading information or documents8  
  • falsify, conceal, destroy or otherwise dispose of a document which is or would be relevant to one of our investigations9
  • pay out of their firm’s accounts any sums of money at a time when such payments have been prohibited by service by us of an intervention notice10
  • apply to us to be a licenced body and fail to identify any non-authorised person who holds an interest in the body11, or fail to notify the non-authorised person of having identified them in the application12.
 

Deciding whether to commence criminal proceedings

We receive reports of possible criminal offences from a wide range of different sources or we may become aware of them from our own work. When assessing the information and considering what course of action we should take, we will generally follow the guidance contained in the Code for Crown Prosecutors (CPS Code).

We will only decide to commence criminal proceedings when we are satisfied that both parts of the two stage test set out in the CPS Code are met. Those stages are:

  • the evidential test; and
  • the public interest test.

If we are not satisfied that both of these tests are met but we consider that some action is required, we can take other regulatory or disciplinary action.

The evidential test

We must be satisfied that there is enough evidence to provide a realistic prospect of conviction against the individual concerned on each charge. We will consider what their explanation, if any, is and how that might affect our case against them.

A realistic prospect of conviction is an objective test. It means that a Jury, or bench of Magistrates, or a Judge hearing the case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

In doing so, we will take into account the fact that the criminal courts apply the criminal standard of proof. In other words, they only find charges proven beyond a reasonable doubt: Namely, when they are sure the circumstances and facts were as alleged.

In deciding whether there is enough evidence to meet the realistic prospect test, we will consider the evidence in our possession and any further evidence that we will be able to obtain once we have made the decision to issue proceedings. This is because we may request further information or documents after the decision is made, in order to present the case more fully. We may also gather further evidence to deal with points raised in defence of the proceedings. We will consider whether the evidence can be used and is reliable. We will give appropriate weight to the evidence we have. For example, we will place less weight on witness evidence that is vague and omits important dates and facts.

If a matter does not pass the evidential test, we will not proceed to issue criminal proceedings.

Public interest test

If the evidential test is passed, we will consider the public interest test. We take action to protect the public and support the rule of law and administration of justice. For example, it may be necessary to remove the risk to consumers of an unauthorised or struck off solicitor handling their case, or their money. Clients of unregulated individuals who are misled in that way cannot obtain redress from the Legal Ombudsman and are often unable to claim on any insurance policy. We also take seriously the principle of regulatory cooperation and will prosecute those who avoid our regulatory action or compliance with our rules, for example by deliberately fabricating or destroying documents.

A list of public interest factors for and against commencing proceedings is set out below. The list is not intended to be exhaustive, and in some cases there will be factors weighing in each direction which we will need to balance against each other.

Factors in favour of commencing proceedings

Criminal proceedings are more likely when there is evidence that:

  • a conviction is likely to result in a significant penalty such as a significant fine or a custodial sentence
  • the act was pre-meditated, repeated (or is likely to continue or be repeated), systematic or dishonest
  • a client or other person’s interests have been seriously compromised, or they have suffered financial loss
  • any victim of the act was vulnerable or discriminated against
  • the individual or firm has a poor disciplinary or regulatory history
  • the individual or firm has been previously warned about a potential criminal offence or has previous criminal convictions.

Factors against commencing proceedings

Proceedings are less likely to be needed when:

  • the individual was at the time of the offence, suffering from mental or physical ill health which contributed towards the offence
  • the individual is currently suffering from mental or physical ill health such that bringing criminal proceedings would have a seriously harmful effect on their health or would impact on the person's right to a fair trial
  • the individual or firm has co-operated fully with us, in particular correcting the problem when they are able to
  • there has been a significant passage of time since the alleged offence was committed (bearing in mind the reasons for any delay).

Example 1

Mr H was a solicitor who was struck off the roll by the Solicitors Disciplinary Tribunal (SDT) three years ago. The SDT found that he had acted dishonestly. Despite being struck off, Mr H continued to act as a solicitor, providing conveyancing and probate services to family, friends and previous clients over many months, often charging significant fees for doing so. On several occasions, Mr H acted through a firm that gave the impression that he was regulated by us, when he was not.

We prosecuted Mr H for acting as a solicitor when not qualified to do so, and carrying on a reserved legal activity when not entitled. The Judge sentenced Mr H to a custodial sentence of three months, concurrent on each count.

Other action we may take

If the public interest test for bringing a prosecution is not satisfied we may take other action, such as sending a letter to require the individual or firm to do something (such as change their publicity to clarify their registration status) or warn them that repetition of the conduct might lead to us commencing criminal proceedings.

We may choose not to commence criminal proceedings when we consider that the outcome necessary to protect the public interest can be more effectively and proportionately obtained through use of our regulatory powers. If we do not think the offence can be proved to the criminal standard, we may nonetheless decide to use our regulatory powers, in which we apply the lower civil standard of proof.

However, we will bring criminal proceedings where the test above is met and may do so alongside regulatory action where necessary. For example, if we have evidence that a non-lawyer, such as Head of Finance and Administration in a licensed body was conducting reserved work which harmed clients’ interests, we might decide to disqualify them from holding that or another key role in a licensed body in the future, as well as commencing criminal proceedings for acting when unqualified to do so.

Example 2

Mr Z had completed his legal education, but had not finished his period of recognised training. He was not therefore admitted as a solicitor. He was asked by a friend to help him in his divorce proceedings. He did so free of charge and wrote to his friend’s husband describing himself as a solicitor.

We investigated Mr Z for the offence of using the title of solicitor. Mr Z accepted that he had acted foolishly and said that he would not do it again. We considered that as the offence was a one off, it would not be proportionate to issue criminal proceedings. We sent Mr Z a letter warning him about his conduct.

We may also decide to refer the matter to another body, including the police, if for example the offence forms part of a wider case they will be considering. We will work with other prosecuting agencies in deciding who should lead on a particular case.

Read our guidance on how we investigate and deal with parallel investigations

Notes

1. s20 Solicitors Act 1974.

2. s21 Solicitors Act 1974.

3. s14 Legal Services Act 2007; s16 Legal Services Act 2007; s17 Legal Services Act 2007; the offence can also be committed by a firm’s managers or members if they consented or connived to the offence or if it was attributable to their neglect - see s197

4. s42 Solicitors Act 1974 sch 2, s10 Administration of Justice Act 1985.

5. s44 Solicitors Act 1974.

6. s10 Administration of Justice Act 1985 – the offence can also be committed by the firm’s managers or members if they consented or connived to the offence or if it was attributable to their neglect.

7. s 24 of the Solicitors Act 1974; note the section extends the offence to acts done by a director, officer or servant of the body corporate.

8. s44BC(3) Solicitors Act 1974; paragraph 14 Sch 13, Part II Legal Services Act 2007 in relation to non-authorised persons.

9. s44BC(1) Solicitors Act 1974.

10. Sch 1 paragraph 6(6) Solicitors Act 1974.

11. Sch 13 paragraph 11 Legal Services Act 2007 - the offence can also be committed by failing to notify us of any person whom the body expects to hold such an interest when the licence is issued and the kind of interest held, or expected to be held by that person.

12. Sch 13 paragraph 13 Legal Services Act 2007.