09 Feb Why the SRA should not have increased fining powers – my personal experience
Last weekend I listened to the SRA’s podcast on their consultation on increasing their fining powers and it made by jaw drop.
The SRA’s fining powers and other sanctions are imposed by ADMs, (Authorised Decision Makers). If you read the recent decisions page on the SRA website, you will see some 3 or 4 practitioners a DAY are being disciplined by the SRA – so their powers are wide ranging and used extensively. Authorised Decision Makers are what used to be called Adjudicators. In the good ol’ days I remember Adjudicators were independent practitioners who were self-employed, who would assess evidence presented to them by the SRA and then make decisions on our futures. I remember I used to see them loitering around basement rooms in the Law Society where practitioners would often appear in front of them to present their cases. Now ADMs are often full time employed members of staff of the SRA working in the same buildings as investigators and of note, it now transpires, are often part of the actual investigation team.
The SRA published a podcast last week and sought to answer questions from practitioners on the SRA’s request to increase their fining powers from £2,000 to £25,000 and to widen their powers more generally. I listened in particular with interest to the response to a question from a viewer who asked ‘who police’s the police?’. This was responded to by Nabeela Zulfaqar, Chief Adjudicator of the SRA. She stated, and I quote:
One, the first point I’d like to make is that adjudication is functionally separate from the operational teams, so the teams that investigate these cases are independent of the investigation and what we receive and see are cases and bundles that are disclosed to the individual, we don’t see the whole case file, we only see the documentation and make a decision on the case file that has been disclosed to the regulated person.
My experience of the SRA is somewhat different to the process outlined by Ms Zulfaqar.
Four years ago someone made a complaint about me to the SRA and as a result I have been under investigation. My matter went before an ADM on 27 July 2020. The ADM made a decision to refuse to make a referral to the SDT indicating that if the matter were to go further it would need further consideration/investigation. Some six months later exactly the same evidence was placed by the case managers, Steven Bint and Zoe Joynes, before someone who, I thought was a randomly selected, second ADM. The second ADM, Mr Stephen Rowe, referred the case to the SDT. Mr Rowe is the Head of Legal and Enforcement at the SRA. The rules do not provide for a second decision to be made on exactly the same evidence and so I indicated that I would seek an abuse of process hearing at the SDT. That hearing was heard on 16 November 2021.
On 9 November 2021 I received witness statements from members of staff at the SRA, In one of those witness statements it was disclosed that Mr Rowe was in fact was the legal advisor into matters in relation to me. Mr Rowe did not mention this in his witness statement. So, a week before the abuse of process hearing I discovered that the ADM who was supposed to be independent, impartial, fair and transparent was in fact also the legal advisor in my case.
I therefore sought further urgent disclosure. It was in the hour before entering the Tribunal on 16 November 2021 a series of emails were disclosed to me. Those emails included the following: (all direct quotes)
14th December 2020
Steven Bint to Business Support Legal and copied to Stephen Rowe
‘Please allocate this to Stephen Rowe as the ADM’
On 17 December Steven Bint emailed Stephen Rowe … “I would be grateful if you could keep an eye out for the allocation of that notice to ensure it is not allocated to anyone else”.
Stephen Rowe responds “Steve, I have emailed them as well I will deal with it before I break up next week”.
Mr Rowe and Mr Bint therefore deliberately arranged who would be the second ADM in my case and that it should go before the legal advisor in my case (and had been for at least 2 years).
In what, I believe, should be of major concern to the profession, is that Mr Rowe gave evidence before the SDT on 16 November 2020 and some of the answers he gave. He stated and I quote as follows “There is no rule within the SRA that says if you have given advice on matter, you are precluded from giving a decision (on the same matter. It is just the accepted way of working, business as usual that somebody involved in a case is not precluded from making a decision”.….The Director of Legal and Enforcement knows that is the procedure as does General Counsel of the SRA, including the Director of Legal and Enforcement and General Counsel of the SRA”.”
The Director of Legal and Enforcement and General Counsel of the SRA were also participants in the podcast referred to above.
Mr Rowe’s evidence seems to directly contradict the information on separation of functions provided in the podcast.
This means that in effect the ADMs at the SRA are both the Police, the CPS, the Judge and the Jury. Whilst we are all in the dock hung out to dry. Until the SRA can put their house in order and have a proper process in place that allows ADMs to be independent and impartial, not only should their fining abilities not be increased, but in my view, they should not have any disciplinary powers over us at all!
The Consultations closes on the 11th February so if you are going to make your views known you need to be quick!