SRA Handbook

Decisions

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Version 8 of the Handbook was published on 01/10/2013. For more information, please click 'History' Above

Part 3: Decisions

Rule 7: Decisions: general

7.1

An SRA finding may be made by:

(a)

agreement between the person under investigation and the SRA;

(b)

a person duly authorised by the SRA;

(c)

a single adjudicator; or

(d)

an adjudication panel.

7.2

A disciplinary decision may be made by:

(a)

agreement between the person under investigation and the SRA;

(b)

a single adjudicator; or

(c)

an adjudication panel.

7.3

An SRA finding which does not involve a consequential disciplinary decision may incorporate or be accompanied by:

(a)

advice to the person as to the person's regulatory obligations;

(b)

a warning to the person as to future conduct.

7.4

An adjudication panel shall be properly constituted if at least two members are present.

7.5

Where an adjudication panel is comprised of three or more members, a decision may be made by a majority.

7.6

The strict rules of evidence shall not apply to decisions of the SRA.

7.7

The standard of proof shall be the civil standard.

7.8

Subject to rule 7.9, decisions will be made on consideration of the report described in rule 6.

7.9

An adjudicator or adjudication panel may give directions for the just, expeditious and effective conduct of a discipline investigation, which may include but are not limited to:

(a)

the provision of further evidence (including formal disclosure of documents which are relevant to the discipline investigation and certification that disclosure is full, frank and complete), representations or formal statements of case analogous to pleadings;

(b)

the admission of oral evidence;

(c)

where oral evidence is to be admitted, whether the evidence is to be considered in public or in private; and

(d)

the consequences of failure by a regulated person to comply with a direction, which may include the exclusion of evidence relevant to that direction from the discipline investigation.

7.10

The decision shall be made when it is sent to the person in writing. The decision will be accompanied with information in writing about any right of appeal within the SRA and any external right of appeal.

Rule 8: Decisions to impose a penalty

8.1

Where the SRA is minded to direct a regulated person to pay a penalty, it may request from that person a statement as to their financial means, and such statement shall:

(a)

include a statement of truth signed by the person or a person duly authorised to sign on their behalf; and

(b)

be provided within 14 days from the date of the request or such longer period as the SRA may specify.

8.2

Where the SRA has decided to direct a regulated person to pay a penalty, the SRA may direct that the payment of all or part of the penalty be suspended on terms to be specified by the SRA in accordance with rule 8.3.

8.3

Any decision to suspend a penalty shall specify:

(a)

the payment which is being suspended;

(b)

the period of time for which the payment is suspended; and

(c)

the circumstances in which the payment is and is not payable, which may include that it shall become payable if the SRA makes a further SRA finding in respect of the person concerned in the period for which the payment has been suspended.

8.4

Where the SRA has directed a regulated person to pay a penalty, subject to rule 8.2 above, such penalty shall be paid within a time and in the manner specified by the SRA but shall not become payable until:

(a)

the end of the period during which an appeal may be made under rules 11 or 12, section 44E of the SA or paragraph 14C of Schedule 2 to the AJA or section 96 of the LSA; or

(b)

if such an appeal is made, such time as the appeal is determined or withdrawn.

Rule 9: Decisions to disqualify, and to review a disqualification

9.1

Subject to rule 9.6, any decision to disqualify a person from acting as a HOLP or HOFA or being a manager or employee shall continue to have effect until such time as it is brought to an end:

(a)

by the SRA following a review under rule 9.4 or an internal appeal or reconsideration under rule 11 or 13; or

(b)

by the appellate body following an appeal under rule 12.

9.2

A person who has been disqualified from acting as a HOLP or HOFA, or being a manager or employee, may apply to the SRA for a review of the disqualification only:

(a)

after a period of 12 months from the date of the decision to disqualify, or after such other period as may be specified in the decision to disqualify; or

(b)

where there has been one or more prior unsuccessful applications to review the disqualification, after a period of 12 months from the date of the decision of the most recent application, or after such other period as may be specified in that decision.

9.3

Where the SRA has received an application under rule 9.2:

(a)

rule 6 shall apply save that:

(i)

before making a decision in respect of the application a report shall instead be prepared in relation to the matters leading to the decision to disqualify and any information or evidence relating to the person's conduct or behaviour in the period since that decision was made;

(ii)

rule 6.5 shall not apply and rules 6.10 to 6.12 shall apply only to the extent that they refer to the application of rule 6;

(iii)

reference to a person under investigation in rule 6 should be read as a reference to a person who has made an application under rule 9.2; and

(iv)

reference to a disciplinary decision should be read as a reference to a decision as to whether to bring a disqualification to an end in accordance with rule 9.4;

(b)

the SRA may:

(i)

exercise any investigative or other powers at any time; and

(ii)

request from the applicant documents or other information relevant to the application.

9.4

The SRA shall decide to bring a disqualification to an end if it is satisfied that:

(a)

it is no longer undesirable for the disqualified person to engage in the relevant activity or activities; and

(b)

it is proportionate and otherwise in the public interest to do so.

9.5

In considering whether to bring a disqualification to an end, the SRA shall take into account all of the circumstances including:

(a)

the criteria at appendix 3; and

(b)

any indicative guidance published by the SRA from time to time.

9.6

Any decision to disqualify a person from acting as a HOLP or HOFA or being a manager or employee may include a direction that the disqualification shall not take effect until any internal or external appeals made under rules 11 or 12 have been withdrawn or determined.

Rule 10: Applications to the Tribunal

10.1

The SRA may make an application to the Tribunal in respect of a regulated person at any time, if the SRA is satisfied that:

(a)

there is sufficient evidence to provide a realistic prospect that the application will be upheld by the Tribunal;

(b)

the allegation to be made against the person under investigation either in itself or in the light of other allegations is sufficiently serious that the Tribunal is likely to order that the person:

(i)

be struck off;

(ii)

be suspended;

(iii)

be subject to an order revoking its recognition;

(iv)

pay a penalty exceeding the maximum that can be imposed from time to time by the SRA; or

(v)

be subject to any other order that the SRA is not empowered to make; and

(c)

it is in the public interest to make the application.

10.2

The SRA will apply rule 10.1 in accordance with a code for referral to the Tribunal as promulgated by the SRA from time to time.

10.3

An application to the Tribunal under rule 10.1 may be authorised by:

(a)

agreement between the person under investigation and the SRA;

(b)

a person duly authorised by the SRA;

(c)

a single adjudicator; or

(d)

an adjudication panel.

10.4

There is no right of appeal against authorisation of an application to the Tribunal.

10.5

Subject to any contrary order of the Tribunal, the SRA may exercise any investigative or other powers at any time before a final hearing of an application at the Tribunal, including those arising from:

(a)

sections 44B, 44BA, 44BB of the SA;

(b)

rules made by the Law Society or the SRA for the production of documents, information or explanations.

10.6

Nothing in these rules shall permit the SRA to make an application to the Tribunal in respect of a person over whom the Tribunal has no jurisdiction.