Solicitors, Drink Driving and the Need for a Consistent Fair Approach

This is an area which continues to cause difficulty, despite its apparent straightforward nature. I have long advocated the need for the SRA to take a more discerning and informed approach than it frequently does. Whilst the Magistrates Courts which sentence convicted solicitors take account of all mitigating factors when handing down a sentence, the SRA is often less inclined to do so, and this can lead to unfair professional decisions.

On 7 February 2019, the SRA published a “Topic Guide” titled “Driving with Excess Alcohol Convictions”, which is to be read in conjunction with both its guidance on the approach to criminal convictions outside of practice, and its enforcement strategy with particular regard to the obligation to uphold the rule of law and the proper administration of justice, enshrined in Principle 1.

Approximately 85,000 people are convicted of drink driving related offences each year in England and Wales, and some of them are solicitors. One only has to look at the SRA website to see recent Regulatory Settlement Agreements made following convictions. They range from rebukes to fines, and it is not easy to understand why one offence leads to a rebuke and another to a significant fine.

My recent experience is that such convictions, not infrequently, have significant professional consequences beyond whatever the Magistrates’ Court sentence may be. The Topic Guide states at the outset that the SRA’s role in dealing with reports of such convictions is not to duplicate the criminal process or to punish a person twice for the same offence, but my experience of such SRA investigations is that they do effectively reinvestigate and almost without exception have a standard approach to sanction which can take the overall punishment to a different level altogether.

These offences are nearly always committed in private time, and so the issue for the regulator is how they impact professionally.

Very few such prosecutions are reported in the press. Court reporters are rarely seen these days in Magistrates Courts. The issue is whether the offence is sufficiently serious to engage and breach any of the “Principles.” Should all drink drive cases be dealt with in the same way? The SRA seems to say “yes.” The default position is that irrespective of the circumstances, it warrants a sanction sometimes with a fine and always with costs. Public confidence says the SRA is damaged when solicitors are convicted of drink driving whether deliberate, careless or inadvertent.

The same approach should apply to drug driving as both are strict liability offences.

Investigation Officers in cases I have dealt with say that drink drive convictions have for many years engaged rules of professional conduct, but this is not so. Indeed, as they are all summary only offences of strict liability there has long been uncertainty over whether convictions have required reporting. In reality they do require reporting. Guidance published in 2019 was ambiguous. It states that it applies “to convictions for driving with excess alcohol and may also apply to offences of driving under the influence of drugs.” It is difficult to understand why it only “may” apply to driving whilst under the influence of drugs. Why would it not? As long ago as March 2015 legislation came into force creating offences of driving with illegal and legal drugs over prescribed levels, effectively aligning drug and drink drive offences. One would have thought that in 2019 it would have been possible to create a guide to the profession that addressed simply and clearly the offences to which it applied.

The following is a list of common drink and drug drive offences:

• Driving on a road or public place with alcohol or drugs over the prescribed limit:

• Being in charge of a vehicle whilst over the drink or drug limit.

• Failing without reasonable excuse to provide a sample of breath, blood or urine for analysis.

All such offences are dealt with in Magistrates’ Courts and, with the exception of charges of failure to provide samples which are more complicated, are offences of strict liability. It doesn’t matter if you didn’t know you were over the limit. In my experience many drink and drug drive offences are committed by people who did not know they were over the legal limit (should have known is a different issue). State of mind is only a mitigating factor and is not a defence. The morning after effect of alcohol consumption can be greater than people realise. Some drugs remain in the body long after consumption. It is possible to overdose legal drugs.

The 85,000 convicted each year will come from a complete range of the public we serve. The solicitors’ profession reflects that, along with all its ability to make human mistakes. I believe the public understands this.

SRA investigations start by letter and a recent one said this:

Our role is to set, promote and secure in the public interest standards of behaviour and professional performance necessary to ensure clients receive a good standard of service and the rule of law is upheld.

This set the tone for the start of an investigation into a first offence of drink driving with no aggravating features resulting in a minimum 12 month disqualification following a guilty plea. One might be forgiven for thinking that the SRA was embarking on an exercise to examine a far more serious criminal offence. How, I wondered, does a drink drive conviction like this one impact on the standard of client service?

This exemplifies the first problem which is that Investigation Officers take different styles of approach, and propose different outcomes, even on the same investigation. In one, the investigation went through three officers as they either left the SRA or moved departments and the last to pick it up took a quite different approach to the others. Some Officers require the production of information that borders on a complete reinvestigation of everything leading to the commission of the offence. I have encountered one or two examples of an explanation being required as to why a roadside breath sample was not provided even though police did not make this the subject of a charge. In one such case the solicitor was a motorcyclist who had come off his bike and was physically unable to provide breath.

Otherwise, questions can be quite low key and simply want to know the date of the offence, level of alcohol, sentence imposed by the court and whether there were any aggravating features. Such convictions rarely have complicated facts.

The SRA web site shows some are fined, some are rebuked, all pay costs, and nearly all are made public. It is difficult to see what facts lead to a fine or rebuke and from the ones I see it seems to be down to the approach of the individual Officer.

Publication causes further difficulty because the presumption is in favour of publication. I have been successful on only a few occasions in persuading SRA not to publish on grounds that doing so will cause damage to the solicitor’s family, or damage to a solicitor recovering from alcoholism which weighs against the public interest in knowing what a solicitor has done.

The SRA is always in a strong position because costs and anxiety rapidly escalate, and quickly reaching an agreement will confine these. Many solicitors have to be pragmatic.

The second difficulty I find is that the SRA frequently takes a one style approach to sanction irrespective of the actual circumstances of the offence or the offender. Let me make clear I completely understand the need to deal robustly with solicitors who are serial offenders or who commit serious drink or drug drive offences with high levels and with significant aggravating features and who may receive custodial sentences. However, the examples I regularly see are at the other end of the spectrum and yet the SRA takes a standard approach from which it will not move, apparently on grounds of consistency.

But what about offences that are completely accidental and with low levels of alcohol?

The 2019 Guide for Drink Drive convictions tells us that the presence of strong mitigating features combined with a lack of aggravating features is likely to result in either a warning or a rebuke. The default position I see is a rebuke with or without a fine in an RSA to be published. I have one example of such a position being presented as take it or leave it and risk an Adjudicator increasing the sanction and costs or even referring to SDT. I have yet to see a warning being deployed in even the most straightforward and low level of drink drive offences.

I find other regulatory bodies are more willing to look at individual circumstances. I have represented many doctors and accountants in drink drive prosecutions and their respective regulators approach convictions quite differently. They can impact professionally if serious enough, but the SRA invariably presents the offender with a draft RSA as a default position.

The publicity can be a real sting, particularly if it leads to employment difficulties. The SRA appears inflexible, and this does sometimes cause real hardship. Regulatory Decisions are being made in some circumstances where they are not warranted.

The SRA does need to be able to see that not all such offences require professional punishment on top of the criminal sentence. The public understands errors. They do not necessarily impact on a solicitor’s ability to do his/her job or to provide a service. They do not demonstrate a failure to uphold the rule of law. We are not expected to be paragons of virtue.

We are just human after all.

David Barton is a Solicitor Advocate specialising, advising and representing solicitors and law firms. He can be found at: www.solicitors-disciplinary-advice.co.uk.