Shepherd v Law Society

A disciplinary tribunal does not have to permit an unappealed criminal conviction to be challenged afresh. Although section 11 of the Civil Evidence Act 1968 gives a conviction evidential effect subject to proof to the contrary, it does not confer an absolute right to reopen the criminal proceedings. A collateral challenge will ordinarily be an abuse of process where the conviction was imposed by a competent criminal court and there is no significant fresh evidence or other exceptional circumstance. Public policy supports avoiding a second trial of the same issues and inconsistent findings by different tribunals.

Mr Shepherd, a solicitor, had been convicted of 15 dishonesty offences and sentenced to three years’ imprisonment. The Solicitors Disciplinary Tribunal admitted a certificate of conviction, found conduct unbefitting a solicitor proved and struck him off. The Divisional Court dismissed his appeal on 27 February 1996 and refused leave. Mr Shepherd sought leave to appeal, arguing that the disciplinary rules incorporating section 11 of the Civil Evidence Act 1968 gave him an absolute right to prove that the convictions were wrongful. The central issue was whether the tribunal could refuse that proposed rehearing in the absence of exceptional circumstances.

The application was dismissed. Hutchison LJ gave the first judgment, and Leggatt LJ agreed with his reasons.

1. The certificate of conviction was admissible to prove the convictions and sentence. Those matters were not disputed. The disciplinary charge rested on the fact of the convictions and sentence, which was said to constitute conduct unbefitting a solicitor.
2. The qualification in section 11 that the conviction was prima facie evidence subject to proof to the contrary did not create an absolute entitlement to adduce evidence challenging the convictions before the disciplinary tribunal. The tribunal’s power to control its process remained subject to the public-policy rule against collateral attacks on decisions of competent courts.
3. The principles discussed in Hunter v Chief Constable of the West Midlands Police & ors [1982] AC 529 and Smith v Linskill (A firm) [1996] 2 All ER 253 applied with equal force to the Solicitors Disciplinary Tribunal. The fact that the proceedings had been brought by the Law Society, rather than by Mr Shepherd himself, did not alter the principle.
4. There had been no appeal against the convictions, no significant fresh evidence and no other exceptional circumstance. Allowing Mr Shepherd to conduct a further trial of guilt would therefore have been an abuse of process. The tribunal was entitled to refuse an adjournment and to refuse the proposed evidence.
5. The unreported Forbes J decision concerned rules which plainly contemplated that the disciplinary committee might permit such a challenge. Re a Solicitor [1992] 2 All ER 335 concerned a finding by an overseas professional board rather than a conviction by a competent criminal court and was distinguishable on its special facts.

• Court of Appeal (Civil Division): On 15 November 1996, the application for leave to appeal was dismissed. [1996] EWCA Civ 977
• Divisional Court: On 27 February 1996, dismissed Mr Shepherd’s appeal from the disciplinary tribunal and refused leave to appeal.
• Solicitors Disciplinary Tribunal: On 4 August, found the charge of conduct unbefitting a solicitor proved and struck Mr Shepherd off the Roll.