Regulators need to learn to let go

Although regular commentators may not agree, our legal regulators are not seeking to strike off as many members of the profession as they possibly can.

I don’t think there are tally boards hanging in the headquarters of the Solicitors Regulation Authority or Bar Standards Board (BSB) logging successful strike-offs or disbarments to cries of delight from bloodthirsty regulators.

But I do think they should know when to draw a line under some matters.

Take the case of Lincoln Crawford. The barrister and former recorder was this week the subject of a High Court judgment in which the court criticised the BSB for refusing to accept a  sanction handed down by a disciplinary tribunal.

Crawford was convicted in 2006 of harassing his ex-wife after the breakdown of their marriage. In 2008 he was convicted of breaching a restraining order, and again in 2015 after sending her angry text messages in 2013. He received a suspended sentence for the latter offence. 

The Bar Tribunal and Adjudication Service (BTAS), which had been asked by the BSB to determine an appropriate sanction after each offence, reprimanded Crawford on both occasions.

Job done for the BSB, you would think? A tribunal was asked to rule on the matter and it did. But the BSB was not content and proposed that the High Court issue a tougher sentence.

In judgment rejecting the appeal, Lord Justice Hickinbottom delves into important territory over what the BSB’s role should be.

Apart from critcising the regulator for not actually saying what sanction it deemed appropriate, he goes on to staunchly defend the tribunal’s findings.

At times it reads more like a lesson than a judgment. The BTAS, he notes, was entitled to take into account that all of the texts were sent in ‘high emotion circumstances’. It also took into account, as it was entitled to, that the respondent had not breached the restraining order for four years and was unlikely to do so ever again. 

The judgment also notes that Crawford, a prominent anti-discrimination campaigner, had agreed to a self-imposed suspension for the duration of the disciplinary process and had fully cooperated with the BSB. ‘Therefore, serious as the respondent’s criminal convictions were … the tribunal was entitled to conclude that his culpability was considerably diminished by these factors. Its conclusion does not become perverse simply because the BSB does not agree with it.’

This is the key line. The BSB may not agree with it, it may not like it, but its job was done when it referred Crawford to the tribunal. Was a potential strike-off or longer suspension really worth all this effort?

It’s hardly reassuring for the profession when regulators are perceived to be attack-dogs rather than standard-setters.

The BSB’s seeming distaste at tribunal findings is also somewhat worrying when it has, with the Solicitors Disciplinary Tribunal possibly poised to follow suit, just agreed to lower the standard of proof applied in disciplinary cases.

Hickinbottom says his judgment is intended ‘to assist’ the BSB in future cases. One important lesson is surely to learn when to let go.