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Decision-making criteria

This set of criteria was archived on 5 October 2012 as part of our Transformation Programme.

Decision to order the prosecution of non-solicitors under the Solicitors Act 1974

Principles of regulatory decision-making, approved by the SRA Board, provide a set of standards applicable to decisions. The principles are supported by guidelines. The principles and guidelines are written, accessible to all staff and published on the website.

The reasons given by a decision-maker will normally include specific criteria applicable to the decision. SRA Policies relevant to decision-making are reflected in the criteria.

Scope of this document

This document applies to decisions we may take to prosecutes offences under Sections 20, 21, 24 and 42 of the Solicitors Act 1974.

Investigations are carried out by the SRA’s Fraud & Confidential Intelligence Bureau (FCIB).  The FCIB obtains statements from potential witnesses and interviews prospective defendants.  The evidence gathered is considered by either the Head of Legal or the Legal Director in the Legal Directorate before a decision to prosecute is made.

Criteria

When making the decision to prosecute, a dual test is applied; the evidential test and public test. This is based upon the Code for Crown Prosecutors which assists the Crown Prosecution Service in making fair and consistent decisions about prosecutions and increases the transparency of the decision making process.

The Evidential Test

There must be sufficient evidence to provide a realistic prospect of conviction against each defendant on each charge. The decision maker must consider what the defence case may be and how that is likely to affect the prosecution case.

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 in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

The decision maker must also consider whether the evidence available can be used and is reliable. Evidence may be excluded from being used in a Court because it is irrelevant, prejudicial or there has been some unfairness in the way the evidence was gathered. These factors may well have a bearing upon whether there was enough evidence for a realistic prospect of conviction.

The defendant's explanation for his or her conduct should also be considered and the likelihood that a Court would find it credible in the light of the evidence as a whole.

The Public Interest Test

It is only if the evidential stage is passed, that consideration should be given to the public interest test.

The decision maker must decide if it is in the public interest to prosecute.

Public interest factors in favour of prosecution include the following:

  • (a)

    A conviction is likely to result in a significant sentence.

  • (b)

    There is evidence that the conduct was premeditated, repeated, systematic or otherwise dishonest.

  • (c)

    A client or other person's interests have been seriously compromised.

  • (d)

    The victim of the misconduct was vulnerable.

  • (e)

    The misconduct was motivated by any form of discrimination.

  • (f)

    The defendant's previous disciplinary history as a solicitor.

  • (g)

    There is evidence to suggest that the defendant has made significant financial gains from the misconduct.

  • (h)

    There are grounds for believing that the conduct is likely to be repeated or continued.

  • (i)

    There has been financial loss or the reputation of the profession has been damaged.

  • (j)

    The conduct has damaged or brought disrepute on the administration of justice.

  • (k)

    The defendant has previous convictions.

Public interest factors against prosecution include the following:-

  • (a)

    The Court is likely to impose a nominal penalty.

  • (b)

    The misconduct was committed as a result of a genuine mistake or misunderstanding.

  • (c)

    The loss or harm can be described as minor and was as a result of a single incident, particularly if it was caused by a misjudgement.

  • (d)

    There has been a long delay between the offence taking place and the date of the trial unless:

    • the offence is serious;
    • the delay has been caused in part by the defendant;
    • the offence has only recently come to light, or
    • the complexity of the offence has meant that there has been a long investigation.
  • (e)

    The defendant is elderly, or is or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated.

  • (f)

    A prosecution is likely to have a bad effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence.

  • (g)

    The defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution solely because they pay compensation).

Alternative to Prosecution

The decision maker should also consider whether there is an appropriate alternative to prosecution. The SRA's alternative is to issue a warning.

A letter of warning may be issued by the SRA where it is not in the public interest to pursue a prosecution and the defendant, although he has not formally admitted to the offence, has acknowledged it in correspondence. A warning is not usually given where the prospective defendant has previous convictions.

Prosecutions under Section 42 Solicitors Act 1974

Before prosecuting a defendant under Section 42 Solicitors Act 1974, the SRA has to obtain the consent of the Attorney General. Prior to giving consent, the Attorney General must be satisfied that the evidential and public interest tests set out in the Code for Crown Prosecutors are satisfied in respect of each proposed defendant on each proposed charge.

When there is a decision not to charge but to caution or otherwise divert the offender away from Court, then the case does not need to be referred to the Attorney General's office.

Example

The example below is illustrative and does not set any type of precedent. Each matter is considered on its own facts and merits.

A decision is made to prosecute an individual who not being a solicitor has pretended to be one. The individual has sent various letters from his home address on notepaper stating he is a solicitor. This is untrue; the individual is not on the roll of solicitors. The letters have been sent to a number of people who the subject individual alleges owes money to a private car hire company, owned by him.