The Case:The case of Wingate & Anor. v The Solicitors Regulation Authority  EWCA Civ 366, combined two appeals from the High Court where a divergence had emerged as to whether there was a difference between the concepts of Honesty and Integrity in disciplinary proceedings against Solicitors. The difficulties arose due to a series of cases where conduct was alleged to have lacked integrity on the part of the Solicitor, but was not alleged to have been dishonest. The courts had previously held that a lack of integrity was an objective test as to whether the Solicitor had failed to meet the high professional standards expected. See Willaims v SRA  EWHC 1478 (Admin) at para. 54. In one of the cases under appeal, the High Court had departed from the previous caselaw and found that there was in reality no difference between the concepts of honesty and integrity. Mallins v SRA  EWHC 835. The criminal test for dishonesty had been laid down in a 1982 Court of Appeal decision in Ghosh,  EWCA Crim 2, first, it must be asked whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable an honest people. If the answer is no, that disposes of the case in favour of the defendant. If the answer is yes, it must be asked, secondly whether the defendant must have realised that ordinary honest people would regard his behaviour as dishonest. This was the test that was applied in Regulatory matters where the higher, criminal standard of proof, - beyond reasonable doubt – was applied.
The New UK Test for Dishonesty:Ghosh was recently overturned by the UK Supreme Court in Ivey v Genting Casinos,  UKSC 67 (see our blog on the case here). The Court found that in both criminal and civil cases where the question of dishonesty arises, the following approach should be adopted:
- The fact-finding tribunal must first ascertain the actual, subjective, state of the individual’s knowledge or belief as to the facts.
- The reasonableness or otherwise of their belief is a matter of evidence going to whether they held the belief, but it is not an additional requirement that their belief must be reasonable. In practice this is often determinative.
- The question is whether it is genuinely held.
- When once their actual state of mind as to knowledge or belief as to facts is established, the question whether their conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people.
- There is no requirement that the defendant must appreciate that what they have done is, by those standards, dishonest.
The Decision:The Court of Appeal found that there was a difference between the concepts of honesty and integrity, and that disciplinary Tribunals were free to find that conduct lacked integrity whilst not being dishonest. The test for dishonesty is now laid down by the Supreme Court in Ivey as an objective test. Nevertheless, the defendant’s state of mind, as well as their conduct, are relevant to determining whether they have acted dishonestly. Integrity is a broader concept than dishonesty. It is a more nebulous concept and is less easy to define. It should be considered as a shorthand for higher standards which society expects from professional persons and which the professions expect from their own members. The concept connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty. Neither the courts nor professional tribunals must set unrealistically high standards. The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public. A professional disciplinary tribunal has specialist knowledge of their profession and the ethical standards of that profession. Accordingly such a body is well placed to identify want of integrity.
Conclusion:In light of this decision clarity has been brought to this issue in the UK. The position can be summarised as follows:
- Integrity and honesty are two different concepts.
- Integrity is broader than honesty and relates to the higher standards expected of the professions.
- The test for both concepts is an objective one.
- The test for dishonesty is as set out by the Supreme Court in Ivey.
- Professional Tribunals are best placed to determine whether there has been a lack of integrity in a particular case.
- The decisions of such bodies ought to be respected unless they have erred in law.
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