Re A Solicitor (Nicastro)

Restoration to the roll after striking off for serious dishonesty is governed principally by protection of the public and preservation of confidence in the solicitors’ profession, rather than punishment or personal hardship. Mitigation, rehabilitation, employment difficulties, family consequences, and proposed safeguards may be considered, but ordinarily do not constitute exceptional circumstances. The court cannot go behind the criminal conviction by entertaining an unaccepted defence such as duress. A refusal to restore a solicitor to the roll is not, without more, deprivation of livelihood, degrading treatment, deprivation of liberty, or wrongful discrimination.

The applicant, a solicitor convicted of multiple serious dishonest offences connected with his professional expertise and struck off the roll in 1994, appealed against the Solicitors’ Disciplinary Tribunal’s refusal to restore him. The tribunal considered the seriousness of the offences, the custodial sentence, and the public interest in maintaining confidence in the profession. Before the Court of Appeal, the applicant relied on Magna Carta, Convention rights, the continuing effect of his punishment, proposed restrictions on practice, and alleged coercion by a co-defendant. The central issue was whether those matters amounted to exceptional circumstances justifying restoration.

1. Appeal dismissed. The tribunal’s refusal to restore the applicant to the roll was upheld. The Law Society was awarded its costs.
2. The governing concern in restoration proceedings is not punishment. It is, first, protection of the public and, secondly, protection of the good standing and collective reputation of the solicitors’ profession. The approach in Bolton v The Law Society [1994] 2 All ER 486 was applied.
3. Personal hardship, inability to obtain employment, family consequences, remorse, rehabilitation, favourable conduct, and proposed safeguards such as conditions on practice or undertakings are relevant matters, but do not ordinarily amount to special or exceptional circumstances after serious dishonesty.
4. The applicant could not invite the court or tribunal to go behind his convictions by advancing a case of duress which had not been accepted by the jury. The offences involved abuse of trust, use of professional expertise and status, four separate institutions, more than £500,000, and conduct over eight months. They were properly reflected in the four-year custodial sentence.
5. The exceptional circumstances contemplated in the earlier restoration decisions referred to circumstances such as a wholly aberrant episode caused by mental illness or overwhelming stress, followed by conduct capable of restoring public confidence. No such circumstances existed here. Refusal of restoration did not infringe Magna Carta or Articles 3, 5 or 14 of the Convention.

• Court of Appeal (Civil Division): dismissed the appeal from the Solicitors’ Disciplinary Tribunal’s decision of 23 May 2001 refusing restoration to the roll. The Law Society was awarded its costs.