El Diwany v Solicitors Regulation Authority

On an appeal from the Solicitors Disciplinary Tribunal, a foreign criminal conviction may be treated as proof of the underlying misconduct under the applicable disciplinary rules, subject to exceptional circumstances. Complaints about the fairness of a conviction should ordinarily be pursued by appeal in the foreign jurisdiction. Provocation, even if substantial, will not justify a campaign of personal harassment or require a disciplinary tribunal to go behind the conviction. The High Court gives considerable respect to the Tribunal’s sanction decision and interferes only where the sanction is clearly inappropriate. Striking off may be justified where serious, deliberate and prolonged harassment is aggravated by lack of insight and failure to report the convictions.

Mr El Diwany appealed under section 49(1) of the Solicitors Act 1974 against the Solicitors Disciplinary Tribunal’s order striking him from the Roll. The Tribunal had found proved, to the criminal standard, that he had been convicted in Norway of two harassment offences and had failed to notify his regulator of those convictions. The appeal proceeded by way of review under CPR r 52.21. The principal issues were whether the Tribunal had been wrong to rely on the Norwegian convictions, whether the alleged provocation and complaints about the Norwegian proceedings created exceptional circumstances, and whether striking off was clearly inappropriate.

1. The appeal was dismissed with costs. The High Court’s function was appellate review, not a rehearing. The appellant had to show that the Tribunal’s order was wrong within CPR r 52.21(3).

2. The Tribunal was entitled under Rule 15(2) of the Solicitors Disciplinary (Disciplinary Proceedings) Rules 2007 to take foreign convictions into account and to treat them as proof of the allegations underlying them. That approach was subject to an exceptional-circumstances qualification. No such circumstances were established.

3. Complaints about the fairness of the Norwegian proceedings, alleged perjury and the appellant’s confession should have been pursued by appeal against the convictions. Norway was a Council of Europe state and party to the ECHR. In principle, the United Kingdom could proceed on the basis that its justice system complied with Articles 6 and 10 ECHR. No fundamental defect in the proceedings was shown. The offences were not strict-liability offences but required intent.

4. The alleged provocation did not justify the conduct. Even accepting that the appellant had been subjected to deeply upsetting, racist and false press coverage, his response involved repeated communications, disclosure of highly personal information and a publicly available website. It went beyond an understandable or acceptable response. The Tribunal was entitled to conclude that the conduct constituted serious misconduct and that the provocation did not justify going behind the convictions.

5. The pleading errors concerning the 1990 rules did not make the order unjust. The substance of the allegations had been before the Tribunal and the appellant suffered no prejudice. The appropriate legal characterisation of the first allegation was conduct unbefitting a solicitor, as explained in Wingate v SRA [2018] 1 WLR 3969.

6. On sanction, the Tribunal was an expert and informed tribunal whose decision deserved considerable respect. Interference was justified only if striking off was clearly inappropriate. Applying the principles in Salsbury v Law Society [2009] 1 WLR 1286 (CA) and Bolton v Law Society [1994] 1 WLR 512 (CA), the order was within the permissible range. Although the Tribunal had arguably referred to an irrelevant practising-certificate point, the striking-off decision would have been the same without it.

• High Court (Administrative Court): appeal from the Solicitors Disciplinary Tribunal dismissed with costs. The Tribunal’s order of 11 December 2019 was upheld.