Salsbury v The Law Society

Striking off is not an automatic consequence of a solicitor’s conviction for dishonesty. The appellate court must consider whether the sanction is excessive or disproportionately harsh in all the circumstances. The profession’s reputation for trustworthiness remains an important consideration, but it must be balanced against the individual facts, including the precise nature and seriousness of the dishonesty. There is a small residual category of cases at the very bottom of the dishonesty scale in which striking off may be inappropriate. Personal mitigation is generally of limited weight, but may reinforce the conclusion that a lesser sanction is proportionate.

Brendan John Salsbury appealed under section 49 of the Solicitors Act 1974 against the Solicitors Disciplinary Tribunal’s decision to strike him off after his conviction for obtaining a money transfer by deception. He had altered a cheque payable to him, increasing it by £1,000. He believed the increased sum was due to him, and the tribunal accepted that it was in fact due, but the alteration deceived the paying bank. The tribunal accepted the unusual circumstances and personal mitigation but concluded that public confidence in the profession required striking off. The central issue was whether that sanction was excessive and disproportionately harsh.

1. Appeal allowed. The court exercised an appellate jurisdiction under section 49 of the Solicitors Act 1974, rather than a supervisory jurisdiction. It therefore considered whether the sanction was excessive or disproportionately harsh in all the particular circumstances. The order for striking off was set aside and replaced by a three-year suspension, running from 18 December 2007. The appellant was awarded costs of £5,483.75.
2. The starting point remained the approach in Bolton v The Law Society [1994] 1 WLR 512. Protection of the public and preservation of the profession’s reputation for integrity, probity and trustworthiness are central considerations. Disciplinary sanctions are not primarily punitive, and personal mitigation normally carries less weight than in criminal sentencing.
3. Since the Human Rights Act 1998, the court must adopt a more flexible approach, as explained in Ghosh v General Medical Council [2001] 1 WLR 1915, Preiss v General Dental Council [2001] 1 WLR 1926 and Langford v The Law Society [2002] EWHC 2802 (Admin). A finding of dishonesty does not automatically require striking off. The tribunal must consider the individual circumstances while also recognising the general effect of failing to strike off a solicitor convicted of dishonesty.
4. The appellant’s conduct was serious and could not be justified by the trust’s poor administration, his non-solicitor capacity, or the fact that the criminal court imposed a lenient sentence. A solicitor must maintain high standards of probity in all dealings. Nevertheless, the dishonesty was highly unusual: he believed the increased amount was owed to him, and it was accepted that it was in fact owed. The case therefore fell at the very bottom of the scale of dishonesty and within the small residual category where striking off may be inappropriate. The grave personal consequences reinforced the proportionality assessment, although they were not decisive alone.

• Solicitors Disciplinary Tribunal: On 18 December 2007, ordered that the appellant be struck off the Roll of Solicitors after he admitted the allegation that he had been convicted of a criminal offence involving dishonesty.
• High Court (Administrative Court): Allowed the appeal, set aside the striking-off order and substituted a three-year suspension.