Naqvi v Solicitors Regulation Authority

An appellate court reviewing a specialist disciplinary tribunal proceeds by review, not rehearing. It should intervene only for an error of law, a critical evidential or procedural error, or an evaluation outside the range reasonably open to the tribunal. Entrapment principles concerned with state agents do not generally apply to non-state agents. A stay based on non-state entrapment is exceptional and requires sufficiently gross misconduct or commercial lawlessness compromising the integrity of the proceedings. Fairness in disciplinary proceedings is assessed in the round; there is no absolute right to cross-examine every absent witness. Under Criminal Attempts Act 1981, an attempt requires intent to commit the relevant offence. Dishonesty is assessed under the two-stage test in Ivey v Genting Casinos (UK) Ltd. Serious dishonest professional misconduct normally warrants striking off unless exceptional circumstances are shown.

Mr Naqvi appealed under section 49 of the Solicitors Act 1974 against the decision of the Solicitors Disciplinary Tribunal dated 13 May 2019. The Tribunal had found proved, to the criminal standard, that he advised an undercover client about pursuing an immigration application based on a sham marriage, failed to give proper advice, offered assistance, and coached the client on supporting evidence. It found breaches of the SRA Principles and dishonesty, struck him off the Roll, and ordered him to pay £24,946.50 costs.

The appeal challenged the Tribunal’s refusal to stay the proceedings for abuse of process, its treatment of the absent undercover client and the interview evidence, its findings of dishonesty, its refusal of disclosure and its sanction.

1. Appeal dismissed. The appeal was by way of review, not rehearing. Applying Solicitors Regulation Authority v Siaw, Solicitors Regulation Authority v Day and Henderson v Foxworth Investments Ltd, the Court would intervene only where the Tribunal made an error of law or principle, a material evidential or procedural error, or reached an evaluative conclusion outside the bounds of reasonable decision-making. Similar restraint applied to sanction.
2. The Tribunal correctly applied The Council for the Regulation of Healthcare Professionals v General Medical Council and Saluja, rather than R v Loosley. R v Loosley concerned entrapment by state agents. For non-state agents, a stay is possible only in the rare case of sufficiently gross misconduct or commercial lawlessness such that reliance on the evidence would compromise the integrity of the proceedings. The Tribunal was entitled to find that the undercover client’s questions were open and fair and did not amount to entrapment.
3. There was no abuse arising from alleged illegality. The Tribunal found no criminality. In any event, an attempt under section 1(1) of the Criminal Attempts Act 1981 required intent to commit the substantive offence, whereas the undercover client intended to investigate Mr Naqvi’s conduct. The Court therefore did not need to decide the admissibility issue discussed in Jones v University of Warwick.
4. There was no absolute right to cross-examine the absent client. Under R (Bonhoeffer) v General Medical Council, fairness in disciplinary proceedings must be assessed in the round, having regard particularly to the seriousness of the allegations, the consequences, the importance of the evidence and the practical availability of the witness. The Tribunal had the complete recordings and transcript and heard the producer cross-examined. Its conclusion that the proceedings could fairly continue was unimpeachable.
5. The Tribunal correctly applied the two-stage dishonesty test in Ivey v Genting Casinos (UK) Ltd: first ascertain the respondent’s actual state of knowledge or belief; then apply the objective standards of ordinary decent people. No acquisitive motive was required, as confirmed by Mortgage Agency Services v Cripps Harries LLP. Actual knowledge and, alternatively, blind-eye knowledge were sufficient; the Tribunal was entitled to rely on Group Seven Ltd v Notable Services LLP.
6. The refusal to disclose material concerning other solicitors was justified because their treatment was irrelevant to whether the allegations against Mr Naqvi were proved. The failure to possess the first interview recording when referring the matter to the Tribunal was immaterial because the allegations were based on the second interview and sufficient evidence existed.
7. The findings of serious dishonest professional misconduct were properly open to the Tribunal. The undercover client merely afforded an opportunity to offend and did not constitute an exceptional circumstance. Striking off and the costs order were neither legally erroneous nor clearly inappropriate.

• Solicitors Disciplinary Tribunal: On 13 May 2019, the Tribunal found the allegations proved, struck Mr Naqvi off the Roll and ordered him to pay £24,946.50 costs.
• High Court (Administrative Court): The appeal under section 49 of the Solicitors Act 1974 was dismissed.