Are you suitable? – the SRA Suitability Test 2011
Introduction
The SRA has announced that those wishing to restore their name to the roll of solicitors can now do so using form KR4 which is to be found on its website.
However, a significant change from previous years is to be found in the process in so far that applicants will need to be screened and to complete the Suitability Test (which replaced the Character and Suitability Test in October 2011).
Like many things at the SRA it is called something it is not. Thus, in this instance, although it is called a test it is in fact a series of criteria for assessing honesty, integrity and character.
But what are those criteria and where are they to be found?
The SRA Suitability Test 2011 is to be found in the SRA handbook and is designed to help ensure that “any individual admitted as a solicitor has, and maintains, the level of honesty, integrity and the professionalism expected by the public and other stakeholders and professionals, and does not pose a risk to the public or the profession.”
The test applies not only to those seeking admission to the roll as a solicitor but also to legally qualified and non-legally qualified applicants for roles in authorised bodies as authorised role holders. This is intended to ensure that everyone working within a solicitors’ practice meets the standards which the public would expect of solicitors.
Outcomes
As with the SRA Code of Conduct, the SRA Suitability Test 2011 contains outcomes, although you would be forgiven for not being able to work out what they mean – they are somewhat vague and don’t really add a great deal either that which precedes them or the requirements of the test. Those outcomes are:
O(SB1) – if you are a solicitor, you are of the required standard of character and suitability;
O(SB2) – if you are an authorised role holder, you are fit and proper; and
O(SB3) – you act so that clients, and the wider public, have confidence that O(SB1) has been demonstrated.
They, and the criteria set out in the test, apply to:
- anyone intending to become a solicitors whether they be students, trainee solicitors or qualified lawyers from other jurisdictions seeking qualification via transfer,
- compliance officers (e.g. COLPs and COFAs), owners, and/or managers, and
- former solicitors seeking restoration to the roll.
In other words, they apply only to those entering or re-entering the profession and not to those who are already solicitors.
There are those who have questioned whether this is a fair system and whether, for example, students who have had a momentary lapse of judgement – for example travelling on a train without purchasing a ticket or accepting a caution for cannabis use – should be treated more harshly than those who are already in practice. There is a strong case to be put for those who want to reform – to change their ways.
The test is divided into two main sections:
- Part 1: Basic requirements, and
- Part 2: Additional requirements to become authorised under the SRA Authorisation Rules
Part 1 applies to everyone – i.e. student enrolment, admission, authorised role holders and restoration whilst Part 2 applies only to those applying for authorisation as an authorised role holder.
Basic Requirements
There are eight sections under the basic requirements – some dealing with issues which will be regarded as counting against an applicant such as being accused of a criminal offence, behaviour incompatible with that expected of a prospective solicitor or authorised role holder, educational offences such as plagiarism, financial problems and prior regulatory matters. It also deals with the evidence that will be required and issues of rehabilitation – i.e. whether you can adduce evidence that despite something which counts against you there is a good reason why you should still be admitted to the role.
1. Criminal Offences
So far as criminal offences are concerned, there are three levels of compulsion which will apply to the SRA’s decision ranging from where they will refuse an application to where they may if they feel it appropriate to refuse the application.
The highest level of severity is where, unless exceptional circumstances exist, the SRA will refuse an application if the applicant has been convicted by a court of a criminal offence:
- resulting in a custodial or suspended sentence;
- involving dishonesty, fraud, perjury and/or bribery;
- resulting in inclusion on the Violent and Sex Offender Register;
- concerns obstructing the course of justice;
- demonstrates discriminatory behaviour;
- is associated with terrorism;
- which was racially aggravated;
- which was motivated by any of the ‘protected’ characteristics defined within the Equality Act 2010; or
- which in the judgement of the SRA is so serious as to prevent enrolment, admission or approval AND the applicant has been convicted by a court of more than one criminal offence.
Note that for these purposes, “court” means any court, tribunal or inquiry of England and Wales, or a British court martial, or any court of another jurisdiction.
The next level of compulsion is where the SRA is also more likely than not to refuse an application if the applicant has:
- been convicted of a criminal offence not falling listed above but which nevertheless has an impact on character and suitability;
- been included on the Violent and Sex Offender Register but not convicted of a criminal offence; and/or
- accepted a caution for an offence involving dishonesty.
Finally, at the lowest level of compulsion, the SRA may refuse an application if the applicant has:
- received a local warning from the police;
- accepted a caution from the police for an offence not involving dishonesty;
- received a Penalty Notice for Disorder from the police;
- received a final warning or reprimand from the police (youths only); and/or
- received a referral order from the courts (youths only).
So what does this mean in practice?
It means that anyone with their sights on a career in the law has to be extremely careful not to become involved in anything that could potentially reflect on their future employment, including “forgetting” to buy a train ticket, taking recreational drugs or engaging in disorderly conduct (even if just as a result of student high spirits) to name but a few.
It also means that serious thought must be given to accepting a caution as it is not going to be the low-key resolution to an incident that many might hope it would be. Remember that accepting a caution is seen as an admission of guilt.
If you have received a Penalty Notice for Disorder then even if the penalty is paid (and the liability for conviction for that offence discharged) nevertheless it must be discharged.
Finally, bear in mind that whilst minor motoring offences (speeding, parking, etc.) that do not result in criminal conviction do not need to be disclosed, serious ones that do result in a conviction must be disclosed.
2. Disclosure
Section 2 provides that all material information must be disclosed and that failure to do so will in itself be regarded as dishonest behaviour. In particular it should be borne in mind that information relating to matters that have occurred outside of the UK must also be disclosed. Bear in mind that this might include an offence which is not an offence in this country.
3. Behaviournot compatible with that expected of a prospective solicitor or authorised role holder
This category takes in those things which, while not a criminal offence, are such that they would call into question a person’s suitability to be a solicitor or authorised role holder. Unless there are exceptional circumstances, then an applicant will be refused if they have undertaken any incompatible behaviour.
This includes behaviour which is dishonest, violent or discriminatory, misuse of a position of responsibility to obtain a pecuniary advantage, misuse of a position of trust in relation to vulnerable people or behaviour which demonstrates that a person cannot be relied upon to discharge regulatory duties.
4. Assessment offences
Assessment offences are those which are committed at an educational establishment. The SRA will refuse an application, other than in exceptional circumstances, if a person has deliberately cheated or plagiarised other work.
5. Financial evidence
Moving away from issues of dishonesty, financial evidence issues takes in issues which are more competency based. Unless there are exceptional circumstances an application will be refused if there is evidence that an applicant cannot manage finances properly, has deliberately sought to avoid responsibility for debts or there is evidence of dishonesty (although not necessarily involving a criminal conviction) in the management of the applicants finances.
In addition, if an applicant has been declared bankrupt then this will raise a presumption that there has been evidence that the applicant could not manage their finances properly and carefully.
Anyone who wishes to rebut such a presumption may be able to show that the financial event occurred some time ago and that since then they have shown that they can manage finance and risk or that the financial circumstances were caused by factors outside of their control.
6. Regulatory history
How a person has been dealt with by other regulatory organisations in the past can also have a bearing upon whether or not they are going to be deemed to be suitable.
Thus, unless there are exceptional circumstances the SRA will refuse an application if the applicant:
- has been made the subject of a serious disciplinary finding, sanction or action by a regulatory body and/or court or other body hearing appeals in relation to disciplinary or regulatory findings;
- has failed to disclose information to a regulatory body when required to do so, or have provided false or misleading information;
- has significantly breached the requirements of a regulatory body;
- has been refused registration by a regulatory body; and/or
- has failed to comply with the reasonable requests of a regulatory body.
and may refuse if the applicant has been rebuked, reprimanded or received a warning about their conduct by a regulatory body, unless there are exceptional circumstances.
Regulatory body means any regulatory body – including the SRA and SDT.
7. Evidence
To assist the SRA to consider an application they provide details of the kind of evidence that should be provided. However, the onus is upon the applicant to provide the evidence, although the SRA may still seek its own information.
The evidence includes:
- at least one independent report relating – e.g. sentencing remarks;
- references from at least two independent professional people;
- evidence of any rehabilitation;
- documentary evidence/corroboration of the applicant’s account of the matter;
- details of the applicant’s attitude towards the matter;
- details of the applicants knowledge of matters relating to educational assessment issues;
- credit check information; and/or
- actions taken to clear any debts, satisfy any judgements and manage finances.
8. Rehabilitation
The onus is upon the applicant to show that they are successfully rehabilitated in which case the evidence put forward will be weighed against the public interest and the need to maintain the reputation of the profession.
Note also that, even if the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is applicable the applicant must still declare all convictions and cautions, even if they are deemed to be spent in accordance with the Act. Failure to do so will be deemed to be dishonest behaviour.
Additional requirements
In addition to complying with the requirements of Part 1, those individuals seeking to become an authorised role holder will also be subject to the following additional requirements.
Unless there are exceptional circumstances, the SRA may refuse an application if the applicant:
- has been removed from the office of trustee for a charity by an order imposed by the Charities Act 1993;
- has been removed and/or disqualified as a company director;
- was the manager or owner of any body corporate that has been the subject of a winding up order, an administrative order or an administrative receivership, or has otherwise been wound up or put into administration in circumstances of insolvency;
- has a previous conviction which is now spent for a criminal offence relating to bankruptcy, IVAs or other circumstances of insolvency;
- was a corporate person/entity subject to a relevant insolvency event defined in rule 1.2 of the SRA Authorisation Rules;
- was a corporate person/entity and other matters that call your fitness and propriety into question are disclosed or come to light;
- has committed an offence under the Companies Act 2006; and/or
- was a person about whom the SRA has evidence reflecting on the honesty and integrity of a person to whom they are related or with whom they are affiliated.