Afsar (A Solicitor), Re

Applicants for student enrolment as solicitors owe the regulator a duty of full and frank disclosure. Pending criminal prosecutions, including motoring prosecutions that may lead to disqualification, must be disclosed. An inaccurate or reckless declaration may call character and suitability into question even without dishonesty. Where dishonesty is alleged, it must be put fairly to the applicant and proved to the civil standard using the applicable dishonesty test. The court may consider subsequent rehabilitation and changed circumstances. Permanent exclusion is disproportionate where later evidence shows that enrolment no longer presents a risk to the public or the reputation of the profession.

Mr Afsar’s student membership of the Law Society was cancelled by an SRA adjudicator after he failed to disclose, when applying for enrolment, that he was on bail awaiting trial for dangerous driving. He later supplied incomplete details of the accident and the resulting injuries. An SRA appeals panel upheld the cancellation.

He appealed under regulation 32(3)(ii) of the Training Regulations 1990. The central issues were whether the application form required disclosure of the pending prosecution, whether the failures demonstrated insufficient character and suitability, and whether the court should take account of later events when deciding the appropriate order.

1. Appeal allowed to a limited extent. The SRA was entitled to conclude, when the decision was made, that Mr Afsar’s failure to disclose the pending prosecution and his subsequent incomplete disclosure raised serious questions about his integrity, probity and trustworthiness. Those matters justified cancellation even though dishonesty had not been established.
2. The enrolment form’s conviction question excluded only motoring offences which did not result in disqualification. It therefore required disclosure of convictions for motoring offences resulting in disqualification. Since Mr Afsar had no conviction when he completed the form, his answer to that question was accurate. The separate question concerning other factors calling character and suitability into question was broad enough to require disclosure of pending criminal prosecutions and their surrounding circumstances. Applicants who are uncertain how to answer must err on the side of caution and make full and frank disclosure.
3. Failure to disclose the pending prosecution made the form inaccurate and the declaration false. Whether or not dishonest, the failure demonstrated at least recklessness. Such recklessness can independently call character and suitability into question. Full details, rather than sketchy or incomplete details, were required when answering the form and responding to the SRA’s investigation.
4. The court explained that, if dishonesty is positively alleged in student enrolment or cancellation proceedings, the SRA must put the allegation fairly to the applicant, prove it to the appropriate civil standard, and apply the dishonesty test identified in Bultitude v Law Society [2004] EWCA Civ 1853. The court found that no such finding had been made here.
5. The court could consider circumstances existing at the date of the appeal. Mr Afsar had completed his sentence, the relevant period had expired, and favourable employment references supported his honesty and reliability. In the absence of deliberate dishonesty, permanent exclusion was disproportionate. The appropriate order was to direct the SRA to reinstate his student membership.

• Court of Appeal (Civil Division): allowed the appeal to the limited extent of directing reinstatement of student membership. The cancellation decision was correct when made, but subsequent circumstances meant that continued exclusion was no longer required in the public interest.
• SRA appeals panel: dismissed Mr Afsar’s appeal and upheld the adjudicator’s decision on 21 November 2008.
• SRA adjudicator: cancelled student membership on 7 April 2008 for failure to disclose the pending prosecution and the full seriousness of the incident.