The Solicitors Disciplinary Tribunal (SDT) was right not to order the Solicitors Regulation Authority (SRA) to seek information from the BBC on behalf of a solicitor facing prosecution, the High Court has ruled.
The ruling from May, which has only just published, concerns the prosecution of Asif Salam following a BBC Radio 4 investigation called Breaking into Britain, broadcast in January 2017.
In it, he suggested to a reporter disguised as a potential client a way to gain a visa for her spouse from Pakistan using false paperwork supplied by an accountant.
Mr Salam’s defence is that he knew it was not a genuine client and he had been “play acting”, thinking she had been sent by a rival law firm.
He has been challenging the accuracy of the BBC recording, stating that parts of the recording were inaudible, that some of his face and lips were not visible, and that the recordings could have been dubbed.
Disclosure has been a major issue in the case; in addition to meeting its disclosure obligations, the SRA has provided voluntary disclosure.
However, among other pieces of information sought by Mr Salam, it has not disclosed the identity of the undercover reporter, which it says it does not know, nor a forensic test of the recording, which it says it has not carried out.
Last year, the Administrative Court rejected Mr Salam’s applications for a summons in respect of a BBC litigation lawyer and for judicial review to challenge the decisions of the SDT to certify the disciplinary case against him and to refuse to grant a stay.
He followed it up this year with an application for judicial review of the SDT’s case management decisions to refuse to order the SRA both to disclose material which he thought it may have, despite the SRA’s denials, and to obtain the name of the reporter from the BBC.
Section 44BB of the Solicitors Act 1974 allows the SRA to seek a court order to compel a third party to provide information when it has “reasonable cause to believe” that the information was likely to be of “material significance” to its investigation.
But the SRA argued that the SDT did not have the power to direct it to do so, and in any case the reporter’s evidence was not of material significance, save for Mr Salam’s “bald assertion” that the recording had been tampered with, which he had not particularised.
The application was rejected on paper, with Mrs Justice Heather Williams certifying the application as totally without merit.
Mr Salam renewed it before Ben Douglas-Jones QC, sitting as a deputy High Court judge, who said the SRA had provided voluntary disclosure “out of an abundance of transparency, no doubt with a view to obviating procedural points being taken by the claimant which serve as impediments to justice being done in a timely fashion”.
There was “no merit in the claim that the SDT acted irrationality, Wednesbury unreasonably and/or in a procedurally unfair way in not making a disclosure order against the SRA”. There was, he added, “no basis” for making one.
Though the reporter was not giving evidence before the SDT, a senior BBC producer would be and Mr Salam could cross-examine him about the recordings.
“In any event, the claimant will be able to explain to the tribunal what questions he would have asked of the reporter in cross-examination had she been called, and what his case is with a deal of precision,” Mr Douglas-Jones said.
“The tribunal will be able to assess the claimant’s credibility and weigh the significance of the different lengths of audio and video recording in so far as that issue is relevant. The tribunal will then be able to assess whether or not the allegations the claimant faces are made out.”
The judge said the involvement of an undercover journalist, whilst an “unusual feature” of the case evidentially, did not render the proceedings exceptional in a way that warranted the court’s interference.
The SRA could also not be said to have acted unfairly, unreasonably or irrationally in not seeking a section 44BB order “because of the requirements of the section itself”, he added.
Dismissing the claim, the judge said the case had endured “significant delay” because it had been “bogged down by repeated applications for judicial review”.
He concluded: “The final hearing before the tribunal should now proceed with expedition.”