Revised policy on regulatory and disciplinary history to support formal decision making
18 October 2013
As an outcome-focused regulator, we identify, assess and manage risk in the public interest to ensure those we regulate comply with the SRA Principles and achieve the outcomes in the Handbook. Our formal decisions act as a vital element in the management of risk.
Our decision-making applies to formal regulatory decisions. Formal decisions are those that are final or determinative, are usually subject to an appeal and are made by decision makers with the delegated power. Some formal decisions are published in accordance with our publication policy.
Decisions should be fair, proportionate and timely. It is important that all relevant facts, information, law, principles, policy and criteria are considered by the decision-maker. This includes taking account of the relevant history of an individual or firm when determining the final regulatory outcome, based on an assessment of the nature, severity and immediacy of risks posed. Taking account of relevant history ensures decisions are made on the basis of a complete picture.
In relation to formal decisions in respect of compliance, where it is of probative value, evidence of propensity may form part of the allegations as opposed to a relevant factor taken as part of the history.
This Policy applies to all our formal regulatory decisions, including the determination of applications for authorisation (both initial and on renewal), approval, enrolment, admission, transfer, waivers, and disciplinary decisions made in consequence of a failure to comply with the SRA Principles or achieve the outcomes within the Handbook. The Policy therefore applies to all regulated firms and individuals, candidates and applicants.
Relevant history will form part of the main body of the report in respect of all matters requiring a formal decision.
Reports setting out relevant history are prepared by case officers for final determination by a decision maker. Case officers therefore exercise their judgement when considering, what, if any, history is relevant to the formal decision they recommend.
Previous history may be relevant to risks posed by a firm or individual because it:
- tends to indicate repeated behaviour on one occasion or more; and/or
- demonstrates a type of behaviour which may or may not be part of a pattern; and/or
- by its very nature is serious such that it impinges on integrity, trustworthiness or probity; and/or
- is of a type that damages public confidence or consumer interests; and/or
- demonstrates a poor attitude towards compliance. This may be relevant because although a particular behaviour is not necessarily repeated or serious, a history of different failures reveals a poor attitude.
Relevant history may include:
- Formal regulatory or disciplinary decisions made by the SRA such as fines, rebukes, finding and warnings, letters of advice (whether formally published or not),
- Decisions to exercise intervention powers,
- Solicitors Disciplinary Tribunal findings;
- Applications for referral to the Solicitors Disciplinary Tribunal,
- Current or previous controls or restrictions imposed by the SRA,
- Findings or decisions of another regulator,
- Records of bankruptcy, Individual or Partnership Voluntary Arrangements, administration or insolvency events,
- Formal disqualifications of any type,
- Convictions and cautions,
- Judgments in civil proceedings,
- Refusal of registration by another regulator,
- Removal from the office of trustee for a charity by an order imposed by the Charities Act 1993,
- Management or ownership of a body corporate which has been the subject of a winding up order, an administrative order, administrative receivership, or has otherwise been wound up or put into administration in circumstances of insolvency;
- Offences committed under the Companies Act 2006,
- Evidence reflecting the honesty and integrity of a person related to or affiliated with the subject firm or individual, such that there is reason to believe that person may have an improper influence over the subject firm or individual;
- A failure to disclose any type of relevant information.
Although generally, only the firm's history may be relevant to a formal decision about a firm, the history of individuals, a group of individuals and/or other entities, whether SRA regulated or not, may be relevant to the decision. This may include relevant history of individuals or entities connected or related to the firm about which the decision is to be made.
Where a firm and regulated individuals collectively form part of the formal decision, any relevant history of each may form part of the relevant history and will be considered at the same time.
Generally, formal decisions about individuals include relevant history personal to them. However, the history of another individual or entity, SRA regulated or not, may be relevant to the decision by virtue of the individual’s connection, association or otherwise with them. The relevance will be made clear in the report.