Jailed Khan loses appeal against 'manifestly excessive' sentence

The Court of Appeal today dismissed an appeal by high-profile solicitor Soophia Khan, who was jailed last month for contempt for breaching two High Court orders requiring her to deliver up client files to the Solicitors Regulation Authority.

Khan’s legal team argued that the sentence imposed by Mr Justice Leech last month was ‘manifestly excessive’. Leech imposed a six-month custodial sentence, with three months suspended if Khan complied with the orders within six weeks of the date of his judgment.

Barrister Alistair MacDonald QC, for Khan, began submissions by telling Lord Justice Arnold and Lord Justice Nugee that she was under pressure from her own clients.

The court heard that two separate clients emailed solicitors representing Khan on 15 January. MacDonald said: ‘As the court sees, the clients were extremely happy in the way in which their cases were being conducted by Ms Khan. They were deeply unhappy about the intervention by the SRA and the effect upon their cases, and their documents of the intervention by the SRA, and the depth of their desire is clearly set out in these emails in their specific instructions not to share these files which they considered to be their property.’

The contents of the first email were read out in court. The client said that if the files were removed from Khan’s care, ‘I will consider them stolen’.

The court was told that Khan should have been given the opportunity to obtain specific psychiatric evidence and Mr Justice Leech did not give sufficient weight to a GP’s letter which stated she was suffering from stress and anxiety as a result of the ongoing litigation, which was affecting her comprehension and understanding of recent issues in litigation matters.

MacDonald added that it would have been helpful for Leech to provide a ‘starting point’ in his sentence to judge the degree of discount given to mitigating features. His client also should have received a discount for admitting breaches in a letter sent soon after she instructed Janes Solicitors to represent her in the committal proceedings.

After only a minute of deliberation, the appeal court judges returned to inform barrister Rupert Allen, for the SRA, that they did not need to trouble him, and dismissed the appeal.

Arnold said he did not accept that Leech failed to give proper weight to the GP’s evidence. ‘The date of this evidence is 16 December 2021. That is to say, the day before the hearing of the committal application. It is unsurprising that any respondent to a committal application would be feeling very stressed the day before the hearing of an application for them to be committed to prison. What the doctor does not do in his letter is to identify the date when the symptoms of which he speaks first manifested themselves.’

Arnold said Leech was justified in giving Khan no credit for the admissions she made. ‘In the first place, as [Mr Justice Leech] pointed out, the admissions made were simply that of non-compliance with orders of the court. There was no admission of contempt of court.’

The judge said the sentence was imposed in two parts – the first part was directed to punishment and the second part to future compliance. ‘It seems to me she could not realistically expect any discount on the sentence that would otherwise be imposed. It would have been quite different if she belatedly made steps towards compliance. Even now as of the date of the hearing before this court there is no evidence that Ms Khan has either complied with either order or made any attempt to do so.’

On the client emails, Arnold said the first one was sent at 2.02pm and the second one was sent at 2.32pm, and they were in ‘very similar terms to the extent that they share certain spelling mistakes’.

‘Both emails say the clients are making a complaint against the SRA for having demanded their files from Ms Khan without the individual’s consent. Both emails state they instructed Ms Khan not to share their files with the SRA and expressed in strong terms their concern at the prospect of the SRA having access to their files. There is no evidence before the court to explain the genesis of these two emails... There is no evidence from Ms Khan herself to say she was placed under pressure either by these two clients or indeed any other client.’

Arnold said the two clients clearly did not understand the consequences of the SRA’s intervention into Khan’s practice, as Khan was unable to continue to act for them and they needed to obtain alternative representation from different solicitors. ‘Nor does it appear to have been explained to them they need have no concerns as to privilege and confidentiality of the documents in question because the SRA and its intervention agent are obliged to respect these important considerations.

'Indeed, it could be said the evidence contained in these emails [was] missing before the judge, showing how the clients had been prejudiced by Ms Khan’s failure to comply with the orders of the court.’

He did not accept there could be a ‘uniform’ sentencing approach for civil committal applications. 

Lord Justice Nugee said he agreed entirely with Arnold’s judgment. ‘Like him, at the end of the day, stand back and assess whether this sentence was manifestly excessive, which I have not been persuaded that there was a case in which the sentencing can be characterised in that way.’ 

Today's hearing, which was listed to begin at 10.30am, had to be adjourned for half an hour so that Khan could watch the proceedings remotely from prison. MacDonald told the court the CVP link was only available for one hour and it was the prison ‘who insisted they could not begin before 11am’.

Khan appeared via video-link at 11am and took notes throughout the hearing. She was not on screen when the appeal judges delivered their ruling.

Khan is a former chair of the Law Society's civil justice committee.