SOLICITORS DISCIPLINARY TRIBUNAL. IN THE MATTER OF THE SOLICITORS ACT 1974 Case No and. Before:

Transcription

1 SOLICITORS DISCIPLINARY TRIBUNAL IN THE MATTER OF THE SOLICITORS ACT 1974 Case No BETWEEN: SOLICITORS REGULATION AUTHORITY Applicant and OLUFEMI AKINWOLE OLUJINMI Respondent Before: Mrs J. Martineau (in the chair) Mr D. Glass Mr P. Wyatt Date of Hearing: 11 March 2016 Appearances Inderjit Johal, barrister of The Solicitors Regulation Authority, The Cube, 199 Wharfside Street, Birmingham, B1 1RN for the Applicant. The Respondent appeared in person. JUDGMENT

2 2 Allegations 1. The allegation against the Respondent was that: 1.1 Contrary to Section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988, the Respondent failed, without reasonable excuse to provide a specimen or specimens of breath for analysis by means of a device of a type approved by the Secretary of State (pursuant to section 7 of the Road Traffic Act 1988) in the course of an investigation into whether he had committed an offence under section 3A, 4 or 5 of the Road Traffic Act He thereby failed to: Documents (a) uphold the rule of law and the proper administration of justice contrary to Principle 1 of the SRA Code of Conduct 2011 (b) act with integrity contrary to Principle 2 of the SRA Code of Conduct 2011 (c) behave in a way that maintained the trust the public placed in him and in the provision of legal services contrary to Principle 6 of the SRA Code of Conduct The Tribunal reviewed all the documents submitted by the Applicant and the Respondent which included: Applicant: Application dated 2 November 2015 together with attached Rule 5 Statement and all exhibits Applicant s Statement of Costs dated 4 March 2016 Extract from Blackstones Criminal Practice Respondent: The Respondent s Answer to the Rule 5 Statement together with attached documents The Respondent s Statement of Income and Expenditure with supporting documents Witness statement of the Respondent, Olufemi Olujinmi dated 18 February 2015 (dated in error) Witness statement of Niyi Aborisade dated 18 February 2016 Respondent s Bundle of Authorities

3 3 The Applicant s Application to Admit Documents 3. Mr Johal, on behalf of the Applicant, made an application to admit documents. He sought to admit the witness statements of PC Andrews and PS Nicholls who were the police officers who had dealt with the Respondent. PC Andrews had breathalysed the Respondent and PS Nicholls was the custody suite officer. Both statements had been sent to the Respondent by the Crown Prosecution Service and subsequently disclosed by the Respondent to the Applicant. Mr Johal submitted the statements were relevant as they set out the circumstances of the offence and would assist the Tribunal in relation to the precise factors underlying the offence. There was no judgment available from the Judge who had dealt with the criminal proceedings and Mr Johal submitted the Tribunal only had the Respondent s view of what had happened. 4. Mr Johal further submitted the statements were relevant to an issue that had been raised by the Respondent in relation to his medical problems. The Respondent had pleaded guilty to the offence. He had not appealed the conviction but yet was now seeking to advance medical evidence to explain his behaviour. Both police officers had breathalysed the Respondent and their accounts were different to the account given by the Respondent. Mr Johal submitted that if the Tribunal was thinking of entertaining health issues, then those witness statements were relevant although, as the police officers were not present to give evidence before the Tribunal, due weight could be attached to their statements. 5. Mr Johal also sought to admit an extract from a textbook, Blackstones Criminal Practice, which gave further information about the nature of the offence of which the Respondent had been convicted. 6. The Respondent objected to the application to produce these documents. He submitted the Tribunal had a duty to be fair and transparent and that there was no need for the witness statements from the police officers to be introduced at such a late stage. He submitted the Applicant's case was based on a conviction against him and indeed, a Certificate of Conviction was contained within the exhibits. The Respondent stated he had pleaded guilty to the offence. It would be a waste of time and unfair to reopen the case. He submitted the Applicant had not complied with directions as these documents were not disclosed by way of notice and that it would not be in the interests of justice to allow them to be relied upon. 7. In relation to the extract from Blackstones Criminal Practice, the Respondent submitted the issue was straightforward and concerned a conviction. The extract was only relevant in magistrates court proceedings and was not relevant for the purpose of these proceedings. The Tribunal s Decision on the Application to Adduce Documents 8. The Tribunal had considered carefully the submissions of both parties and noted in particular that the Applicant's case relied upon a conviction. In the circumstances, the Tribunal was satisfied that it was not necessary to allow the statements from the police officers to be adduced as they contained information which went behind the conviction itself. It was not the role of this Tribunal to reopen the case or to make findings on the circumstances leading up to the conviction. The Tribunal refused the

4 4 Applicant s application to rely on the witness statements of PC Andrews and PS Nicholls. 9. In relation to the extract from Blackstones Criminal Practice, the Tribunal noted this was a textbook and accordingly an authority to which the Tribunal was entitled to have regard. Furthermore, the Tribunal was mindful that the Respondent himself had that morning produced a bundle of authorities on which he sought to rely. The Tribunal was satisfied that the Applicant was entitled to draw the Tribunal's attention to the relevant extracts within the textbook and accordingly allowed the Applicant s application to rely upon it. The Respondent s Application of No Case to Answer 10. At the close of the Applicant's case, the Respondent made a number of submissions which appeared to amount to an application of No Case to Answer. He submitted his case was not one that should have been referred to the Tribunal and that the Applicant had not acted proportionately or in the interests of justice by pursuing this case against him. 11. The Respondent referred the Tribunal to the cases of The Solicitors Regulation Authority v Dudley ( ) in which Mr Dudley had been convicted of driving a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit. This had been his second conviction. In that case the Tribunal had concluded the Applicant had not demonstrated to the requisite standard that the public would place any less trust in Mr Dudley as a result of his conviction or that it had resulted in the diminution of trust the public placed in the provision of legal services, other than the fact of the second conviction. 12. The Respondent also referred the Tribunal to the case of The Solicitors Regulation Authority v Harte ( ). In that case Mr Harte had been given a custodial sentence for failing to provide a breath specimen without reasonable excuse and he had had a 5 year old child in his car at the time. Mr Harte had also had a previous conviction for drink driving. The Respondent submitted his own situation was far less serious than either of these cases and as such the Applicant should not have brought his case before the Tribunal. 13. The Respondent submitted this had been his first offence, he had not had any passengers in his car, he had not obstructed the police and the penalty imposed on him by the court had been less than the penalties imposed on Mr Dudley and Mr Harte. The Respondent stated he had completed the driving course as required, and there were no aggravating circumstances in his case. He submitted the Applicant had a duty to act independently, fairly and transparently and that his case was one which should not have been referred to the Tribunal. The Respondent submitted the regulation of professionals should have a human face and that the Applicant had not acted as it should in these circumstances where the Respondent s conduct had occurred due to a moment of madness. This was a Road Traffic offence and the Respondent submitted the Applicant had acted out of proportion.

5 5 14. Mr Johal in response to the Respondent s submissions reminded the Tribunal this case was based on a conviction to which the Respondent had pleaded guilty. The Tribunal had already certified there was a case to answer. The Tribunal s Decision on the Applicant s Submission of No Case to Answer 15. The Tribunal considered both parties submissions and the cases to which it had been referred. A Case to Answer had already been certified by a member of the Tribunal some time ago and indeed a Memorandum of Conviction was exhibited to the Rule 5 Statement confirming the Respondent s conviction. The Tribunal was satisfied that there was sufficient evidence before it such that on one possible view of the facts, the Tribunal could conclude the allegation was proved. Accordingly the Tribunal dismissed the Respondent s submissions of No Case to Answer. Factual Background 16. The Respondent, born in 1976, was admitted as a solicitor on 1 July The Respondent was a partner at OA Solicitors, 353a Barking Road, London, E6 1LA. 17. On 5 March 2015, the Respondent self-reported his conviction on 3 March 2015 for an offence of failing to provide a specimen, to the Solicitors Regulation Authority (SRA). A Memorandum of the Conviction from Romford Magistrates Court confirmed the Respondent had pleaded guilty to an offence of: On 09/11/2014 at Ilford Police Station, High Road, Ilford when suspected of having driven a vehicle and having been required to provide a specimen or specimens of breath for analysis by means of a device of a type approved by the Secretary of State pursuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether you had committed an offence under section 3A, 4 or 5 thereof, failed without reasonable excuse to do so Contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act As a result of his conviction the Respondent had been fined 675, ordered to pay a Victim Surcharge of 68, costs of 300 and he was disqualified from holding or obtaining a driving licence for 12 months. That period of disqualification was to be reduced by 3 months if, by 1 October 2015, the Respondent satisfactorily completed a course approved by the Secretary of State, the cost of such course not to exceed The Respondent at the first hearing before Romford Magistrates Court on 21 November 2014 had pleaded not guilty to the offence. However, he later pleaded guilty on 3 March In subsequent correspondence to the Applicant, the Respondent stated that his health issues could have been responsible for his inability to provide a specimen of breath. He had stated he could not afford to pay for representation at the trial and had therefore decided to plead guilty. Witnesses 20. The following witnesses gave evidence:

6 6 The Respondent Olufemi Akinwole Olujinmi Niyi Aborisade Findings of Fact and Law 21. The Tribunal had carefully considered all the documents provided, the evidence given and the submissions of both parties. The Applicant was required to prove the allegations beyond reasonable doubt. The Tribunal had due regard to the Respondent's rights to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 22. Allegation 1.1: Contrary to Section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988, the Respondent failed, without reasonable excuse to provide a specimen or specimens of breath for analysis by means of a device of a type approved by the Secretary of State (pursuant to section 7 of the Road Traffic Act 1988) in the course of an investigation into whether he had committed an offence under section 3A, 4 or 5 of the Road Traffic Act He thereby failed to: (d) uphold the rule of law and the proper administration of justice contrary to Principle 1 of the SRA Code of Conduct 2011 (e) act with integrity contrary to Principle 2 of the SRA Code of Conduct 2011 (f) behave in a way that maintained the trust the public placed in him and in the provision of legal services contrary to Principle 6 of the SRA Code of Conduct Mr Johal, on behalf of the Applicant, submitted the Respondent was an officer of the court and expected to uphold the rule of law and the proper administration of justice. He had failed to do this by failing to provide a breath sample. He had been given four opportunities to do so and, Mr Johal submitted, the Respondent s failure to comply on each occasion collectively amounted to acting with a lack of integrity. This was not conduct expected of a solicitor and Mr Johal submitted the Respondent had breached Principles 1, 2 and 6 of the SRA Code of Conduct 2011 ( the Code ) Mr Johal referred the Tribunal to the case of In the Matter of a Solicitor and in the Matter of The Solicitors Act 1974 (Shepherd) CO/3076/95 which set out a definition of exceptional circumstances for challenging a conviction. In that case The Lord Chief Justice, Lord Taylor of Gosforth had stated: Finally in Smith v Linskill (The Times: February 7, 1996), the Master of the Rolls, Sir Thomas Bingham, after noting that Hunter s case is the leading modern authority on abuse of process by challenging a previous decision of a competent court, cited a passage from the judgment in that case of Goff LJ in the Court of Appeal that relitigation of an issue which had previously been

7 7 the subject of final decision must prima facie be an abuse of the privilege of the court to allow the matter to be litigated all over again. The Master of the Rolls set out three public policy considerations underlying the rule: (1) The affront to any coherent system of justice which must necessarily arise if there subsisted two final but inconsistent decisions of courts of competent jurisdiction (2) The virtual impossibility of fairly retrying at a later date the issue which was before the court on the earlier occasion.. (3) The importance of finality in litigation...public policy requires that, save in exceptional circumstances, a challenge to a criminal conviction should not be entertained by a Disciplinary Tribunal for the reasons quoted above from the Master of the Rolls judgment. If this appellant's argument were right, he should have been allowed to challenge his conviction before the Tribunal even if he had appealed unsuccessfully to the Court of Appeal Criminal Division. That could, in theory, have led after a conviction by a jury on the criminal burden of proof, upheld by three Appeal Court Judges, to exoneration by a Disciplinary Tribunal on the civil burden of proof. Moreover, to achieve it, the witnesses from the criminal case would have to undergo the trauma of a rehearing. In the absence of some significant fresh evidence or other exceptional circumstances such an outcome could not be in the public interest Mr Johal submitted the Respondent had not appealed against the conviction and the medical evidence he now produced was unremarkable. It contained general notes from his general practitioner, and one report from an Accident and Emergency Department which post-dated the date of the offence. Mr Johal submitted there were no exceptional circumstances in this case which would allow the Tribunal to consider this evidence in relation to the circumstances of the conviction In relation to the case of Solicitors Regulation Authority v Dudley which the Respondent had drawn to the Tribunal s attention, Mr Johal submitted that was a fact specific case and was not binding on this division of the Tribunal. The offence in that case had been different. At the heart of the Respondent s case was his failure to cooperate and assist the police The Tribunal also heard evidence from the Respondent. His position in his witness statement was that on 8 November 2014, he had received some sad news concerning the death of his uncle. The Respondent had gone to see his colleague for consolation and whilst there had accepted a glass of wine. The Respondent stated it was out of character for him to drink when he knew he was driving and indeed, he had had his driving licence for five years before this incident happened. He had finished his glass of wine and then left his colleague s house preoccupied with the thoughts of his uncle. He had forgotten to turn his headlights on was stopped by the police. He had informed the police he had had a glass of wine. He was told he would be

8 8 breathalysed, the procedure was explained to him and he was given a breathalyser machine The Respondent stated he started blowing into the instrument as instructed but was told he was not doing it correctly. After three attempts he was arrested and taken to the police station where a further attempt was made to breathalyse him with a large machine. The Respondent stated he had again tried to blow into the machine as instructed but was told by the police officer that he was not doing as he had been instructed to do The Respondent, in his witness statement stated he had pleaded not guilty at his first appearance before the magistrates court as he was certain that his medical issues were responsible for him not being able to provide a specimen. He had instructed a firm of solicitors to represent him and had paid 400 for an initial consultation and advice. However, he was subsequently told that a trial would cost over 3,000 and as he could not afford this, he decided to plead guilty. The Respondent stated in his witness statement that he had completed the driving course required and had paid the fine On cross-examination, the Respondent accepted that as a solicitor he was expected to uphold the rule of law. However, he submitted he had been unable to do so on this occasion due to exceptional circumstances. He had lost someone he had grown up with and was very close to, and in his grief had drank a glass of wine and then left his friend s home without turning on the headlights of his car. This had caused the police to stop his vehicle. The Respondent stated he had tried to blow into the breathalyser machine and when he was unable to do so, he was locked up in a cell. The police had not asked him about any medical problems. The Respondent stated that he had pleaded guilty as he could not afford to pay for representation at the trial. He had medical evidence and thought he would produce that later. He had subsequently borrowed money to pay the fine. He had completed the driving course and his disqualification had ended in December The Respondent stated he did not drink at all now The Respondent was of the view that the public would not be concerned about a solicitor being convicted of a traffic offence. Nor would such a conviction diminish the trust the public placed in him. The public was more likely to be concerned if a solicitor was stealing client money or found guilty of some other serious offence. The Respondent stated he regretted the offence but that he was only human The Tribunal also heard from Mr Niyi Aborisade, who worked with the Respondent. He gave evidence about the Respondent s good character and his health complaints The Tribunal considered carefully the submissions of both parties, the evidence and the documents provided. The Tribunal had been provided with a Memorandum of the Conviction at Romford Magistrates Court confirming that on 3 March 2015 he was convicted on his guilty plea of: On 09/11/2014 at Ilford Police Station, High Road, Ilford when suspected of having driven a vehicle and having been required to provide a specimen or specimens of breath for analysis by means of a device of a type approved by

9 9 the Secretary of State pursuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether you had committed an offence under section 3A, 4 or 5 thereof, failed without reasonable excuse to do so Contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act The Tribunal was satisfied that based on this Memorandum and the Respondent s evidence, he had been convicted of that offence, indeed the Respondent did not dispute he had been convicted The Tribunal then considered whether the Respondent had breached Principles 1, 2 or 6 of the SRA Code of Conduct Although the Respondent had made reference to exceptional circumstances and his medical health, there was insufficient evidence before the Tribunal to show that the Respondent had been unable to provide a breath test to the police. Furthermore the Tribunal would not, and could not, go behind the fact of the conviction. The Tribunal was satisfied there were no exceptional circumstances such as to challenge the conviction. The Respondent had been given several opportunities to provide a breath test and indeed had been taken back to the police station so he had had plenty of time to consider the matter carefully. Despite this he had failed with reasonable excuse to provide a specimen of his breath to the police when required. The Tribunal was further satisfied the Respondent had thereby failed to uphold the rule of law and the proper administration of justice and had breached Principle 1 of the SRA Code of Conduct The Tribunal found allegation 1.1(a) proved Principle 2 was an allegation that the Respondent had failed to act with integrity. This was a very serious allegation and whilst the Tribunal accepted the Respondent had behaved inappropriately, it was not convinced that, by being convicted of this offence he had acted with a lack of integrity. The Tribunal had heard evidence from the Respondent from which it was clear he had been very upset by the death of his uncle at the time of the incident and whilst this did not excuse what he had done, it was an indication of his state of mind at the time. The Tribunal was mindful the Respondent did eventually plead guilty to the offence and considered this showed he had acted with some integrity. The Tribunal found allegation 1.1(b) not proved In relation to a breach of Principle 6, the Tribunal noted this had been an isolated incident which had led to a conviction. The Tribunal was satisfied that a member of the public would not consider a one-off aberration to be behaviour that did not maintain the trust the public placed in the Respondent or in the provision of legal services. The Tribunal stressed that it did not condone refusing to provide a breath test to the police but it was not satisfied beyond reasonable doubt that the Respondent's behaviour would damage the public trust in him or in the provision of legal services. Accordingly, the Tribunal found allegation 1.1(c) not proved. Previous Disciplinary Matters 23. None.

10 10 Mitigation 24. The Respondent submitted there should be no order against him and requested the matter be dealt with on the basis of compassionate circumstances, details of which he had already provided. 25. In his witness statement, the Respondent had stated he had suffered emotional distress due to this unfortunate incident and that he had not drunk any alcohol or driven his car in the UK since then. In his evidence to the Tribunal the Respondent had stated he would never be involved in anything like this again and that it had been a moment of being stupid due to his state of mind at the time. He understood the gravity of the offence and regretted it. 26. The Respondent also gave evidence to the Tribunal about his financial circumstances and indicated he was in receipt of state benefits. Sanction 27. The Tribunal had considered carefully the Respondent s submissions, evidence and statement. The Tribunal referred to its Guidance Note on Sanctions when considering sanction. The Tribunal also considered the aggravating and mitigating factors in this case. 28. The Tribunal had found allegation 1.1(a) proved. This related to a failure to provide a breath test to the police. This was quite different from the case of SRA v Dudley to which the Respondent had referred the Tribunal. That case related to a drink driving offence. 29. The aggravating factors were that the Respondent s conduct had been deliberate in failing to give a breath test and had resulted in a criminal offence. The Respondent ought reasonably to have known that his conduct was in material breach of his obligation to protect the reputation of the legal profession which included behaving in a way to uphold the rule of law and the proper administration of justice. 30. The mitigating factors were that this was an isolated incident in an otherwise unblemished career and the Respondent had voluntarily notified the regulator of his conduct. He had also co-operated with the regulator. 31. The Tribunal firstly considered whether it was appropriate to make no order in this case. The Tribunal concluded that the level of seriousness of the misconduct was not so low that there should be no order in this case. 32. The Tribunal then considered whether to impose a Reprimand. The Tribunal was concerned about the Respondent s level of genuine insight. It was not a minor matter to fail to give a sample breath test to the police and indeed, the Respondent had been given four opportunities to do so. He had deliberately failed to comply leading to his conviction and as such, the Tribunal did not consider a Reprimand was a sufficient sanction to mark his misconduct.

11 The Tribunal was of the view that whilst the seriousness of the misconduct was such that a Reprimand was not a sufficient sanction, neither the protection of the public nor the protection of the reputation of the legal profession justified a sanction which would interfere with the Respondent's ability to practise. The Tribunal was satisfied that in this particular case, taking into account the aggravating and mitigating factors, a fine of 5,000 was the proportionate and appropriate sanction to reflect the allegation found proved. 34. The Respondent had given evidence concerning his financial circumstances and had confirmed he was receiving state benefits. In light of this, taking into account the case of Frank Emilian D Souza v The Law Society [2009] EWHC 2193 (Admin) in relation to the Respondent s ability to pay the fine imposed, the Tribunal reduced the fine by half to 2,500. Costs 35. Mr Johal requested an Order for the Applicant s costs. He provided a Statement of Costs in the sum of 2, Mr Johal accepted the time claimed needed to be reduced by about 2 hours as the hearing had taken less time than estimated. 36. The Respondent submitted costs should not be awarded as there were compassionate circumstances which had led to his conviction. He had lost a loved one and found himself in trouble because of it. The Respondent stated this was the first time in his life he had been arrested and that he had suffered a great deal as a result. He again submitted this case should not have come before the Tribunal and that he had suffered enough. He had limited means, details of which he had provided to the Tribunal. 37. The Respondent also submitted the Applicant had only succeeded in relation to allegation 1.1(a) and therefore should bear its own costs. The Respondent had already been fined by the magistrates court and he had been disqualified. He submitted that in the interests of justice there should be no order as to costs. 38. The Tribunal considered carefully the submissions of both parties. The Tribunal was satisfied that the Respondent s own conduct had led to his conviction, and that in turn had led to his appearance before the Tribunal. Although the Tribunal had only found allegation 1.1(a) proved, all three allegations were based on the same factual matrix. Therefore there had been no additional work involved in pursuing the allegations which were found not proved and these had not added to the overall costs. The Tribunal did not accept that this case should not have been brought by the Applicant who had acted entirely properly in referring the matter to the Tribunal. The Tribunal had found one allegation proved and had formed a view on the two allegations having heard evidence from the Respondent. 39. The Tribunal reduced the Applicant s costs to 2,500 to take into account the fact that the hearing had taken less time than estimated on the Statement of Costs and Ordered the Respondent to pay this amount.

12 The Tribunal, having heard evidence from the Respondent concerning his financial circumstances, was satisfied that he was of limited means as he was in receipt of state benefits. The Tribunal therefore Ordered that the Order for costs should not be enforced without leave of the Tribunal. Statement of Full Order 41. The Tribunal Ordered that the Respondent, OLUFEMI AKINWOLE OLUJINMI, solicitor, do pay a fine of 2,500.00, such penalty to be forfeit to Her Majesty the Queen, and it further Ordered that he do pay the costs of and incidental to this application and enquiry fixed in the sum of 2,500.00, such costs not to be enforced without leave of the Tribunal. Dated this 28 th day of April 2016 On behalf of the Tribunal J. Martineau Chairman