The debate on whether there is a difference between honesty and integrity continues apace in Rhys Williams v Solicitors Regulatory Authority [2017] EWHC 1478 (Admin). I expressed my opinion here that there was a material difference between the two and that the decision of Mostyn J in Malins v Solicitors Regulatory Authority [2017] EWHC 835 (Admin), that the two were synonymous, was not correct – at least for the purposes of the Police (Conduct) Regulations 2012. The Divisional Court (the President of the QBD presiding) has now similarly deprecated it.
The court has also restated the principles concerning the requirement that misconduct allegations be properly pleaded and put to witnesses – with a steer that panels should look to the substance rather than technicalities.
Honesty and integrity
Insofar as the decision in Malins was referred to, it was not in flattering terms. The judgment of Carr J noted that, “[counsel] expressly disavowed any intention to invite the court to adopt the decision in Malins v SRA as correct on this point. It is not therefore necessary to consider the issue further, and full submissions were not advanced” [53].
Despite, therefore, having cited before it a decision of a High Court judge sitting in the Admin court, Carr J said that the court would “proceed on the basis, both on the authorities and as a matter of principle, that, in the field of solicitors’ regulation, the concepts of dishonesty and want of integrity are indeed separate and distinct. Want of integrity arises when, objectively judged, a solicitor fails to meet the high professional standards to be expected of a solicitor. It does not require the subjective element of conscious wrongdoing” [54].
If that were not enough, Leveson P also expressed that he would have rejected the decision in Malins, “I ought to make it clear that, in the absence of compelling justification, I would reject Mostyn J’s description of the concept of want of integrity as second degree dishonesty. Honesty, i.e. a lack of dishonesty, is a base standard which society requires everyone to meet. Professional standards, however, rightly impose on those who aspire to them a higher obligation to demonstrate integrity in all of their work. There is a real difference between them” [130].
The judgment noted that Malins is the subject of an application for permission to appeal and that SRA v Wingate and Evans [2016] EWHC 3455 (to which I referred in the earlier post) has been granted permission on the basis that the boundary between lack of integrity and dishonesty raises an important point of principle. There is, therefore, more to watch on this.
Pleading and putting dishonesty
The other point of interest on which the judgment touches is the pleading and putting of allegations of dishonesty – at paragraphs [69]-[76]. In summary, the court noted and/or cited:
- It is a cardinal principle of litigation that if serious allegations, in particular allegations of dishonesty, are to be made against a part who is called as a witness they must be both fairly and squarely pleaded, and fairly and squarely put to that witness in cross examination [70].
- Misconduct pleadings should be clear, coherent and intelligible [71].
- In cross-examination, allegations need to be put to ensure “fair play and fair dealing with witnesses.” A witness must be cross-examined on those parts of his evidence said to be untrue. [72].
- The rule is not absolute or inflexible [73]. What matters is that the witness has a proper opportunity to respond to the allegation [74].
- The rule should not be applied in an over-technical way. Provided that a witness is on notice that his account is being challenged as untruthful in the relevant respect, there is no requirement mechanistically to challenge each and every statement of fact [76].
In police cases, there is no requirement for a police officer to present a witness statement and then confirm the truth of its contents, in place of oral evidence in chief – although they can do so if they wish. Where they dispute the case put against them, reg 22 of the Conduct Regs requires them to give their account of the relevant events.
An officer should have the opportunity to state their account of any relevant events that are said to amount to or be tainted by dishonesty. It will be potentially unfair where an officer genuinely is unable to do so due to insufficient precision in the reg 21 notice.