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25.02.19

Dishonesty: professional suicide (unless you are a politician)

The three-month prison sentence of Fiona Onasanya MP has sparked a debate about whether politicians should lose their parliamentary seat if convicted of a criminal offence.  Ms Onasanya was convicted of perverting the course of justice by falsely telling police that her former tenant was the driver responsible for a minor speeding offence in July 2017.  After 18 months of denials, she was found guilty after an Old Bailey retrial and sentenced to imprisonment.  Despite her sentence (the Attorney General is referring it to the Court of Appeal as unduly lenient), Ms Onasanya is still being paid her full MP's wage during her incarceration and will return to her seat upon her release.

As the law presently stands, under the Representation of the People Act 1861 MPs are only disqualified from sitting if they receive a custodial sentence of over a year.  There is no equivalent provision for Peers.

Commentators may balk at how Ms Onasanya continues her work almost unscathed by her criminal conviction. But it has long been the case that politicians of both Houses enjoy a more relaxed regulatory environment than other professionals, particularly when it comes to matters of dishonesty.

First, let us compare politicians with lawyers.


Solicitors

For solicitors, there has been a slew of recent authorities suggesting that the only sanction for dishonesty is being struck off.

Emily Scott, whilst a trainee solicitor, had actually blown the whistle on the dishonest conduct of her supervising partners. But, having previously played a role in it by following their instructions, she was struck off because, according to the Solicitors Disciplinary Tribunal' (SDT)'s 2019 judgment “...the fact that Scott was under pressure and working in a horrendous environment could not excuse her dishonesty”.  In other words, there is no Nuremberg defence for dishonesty - even when apprentice turns whistle-blower.

In November 2018, James Sovani and Peter Naylor, two solicitors who either misleading or backdated letters/e-mails were both struck off by the High Court (Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin)). The Solicitors Regulation Authority (SRA) had appealed against the decision to merely suspend them, arguing that dishonesty is a ‘red line’ that must lead to strike-off.  The High Court concurred, despite finding Mr Sovani’s treatment was ‘frankly abominable’.  The Court held that mental health symptoms and depression suffered as a result of working conditions could not amount to ‘exceptional circumstances’ that would avoid a strike-off.

In January 2019, Adam Kemeny, a solicitor who saved £650 over three months by deliberately not ‘tapping out’ his rail card at Redhill station, was struck off by the SDT for dishonesty.  Whilst fare evasion is a relatively minor offence, dishonesty is a requisite element of the offence.


Barristers

Indeed, Mr Kemeney would have fared no better at the Bar. Barrister Peter Barnett was disbarred by the Bar Standards Board in 2016 after dishonestly avoiding nearly £6,000 worth of rail fares between London and Oxfordshire.


Financial Services

Likewise, in Financial Services, Jonathan Burrows of Blackrock Asset Management, was barred for life in 2014 by the FCA from holding any senior role in the financial services industry. This was because he had saved £43,000 by exploiting the lack of ticket barriers at his Essex station. The FCA found that his “...conduct fell short of the standards we expect.  Approved persons must act with honesty and integrity at all times and, where they do not, we will take action.”


Doctors

In December 2018, a Dr Collen Nkomo was struck off by the Medical Practitioner’s Tribunal Service (MPTS) for hiding his £10,000 per month income from his wife for the purposes of Child Support. The MPTS ordered that he be erased from the medical register after a disciplinary said his conduct was "calculating and persistent."  There was no related criminal prosecution against Dr Nkomo.


Police

In September 2018 Robert Ward, a police officer who admitted dishonestly writing himself cheques from a deceased man (whose body he had discovered) was dismissed by the Metropolitan Police after breaching the police Standards of Professional Behaviour.


Politicians

Lord Archer of Weston-Super-Mare:
After a very high profile trial in 2001, Jeffrey Archer was convicted of perjury for (successfully) bring a false libel claim 15 year earlier. He was sentenced to four years' imprisonment. However, Lord Archer, to this day, retains his seat in the House of Lords, meaning he is capable of shaping laws despite having spent a considerable time at Her Majesty’s pleasure.

Lord Taylor of Warwick:
Lord Taylor remains a member of the House of Lords despite being convicted in 2011 of expenses fraud worth over £11,000 and sentenced to 12 months’ imprisonment. During his trial for false accounting, Lord Taylor's defence case had been that he felt he was honestly entitled to claim for journeys that he had not actually made as he had been told by other Peers that allowances and expenses were payable in lieu of salary.

Tellingly, Lord Taylor was banned for life from practising as a barrister by the Bar Standards Board, However, he still sits in the House of Lords. This distinction literally means Lord Taylor is deemed unfit to practise as a lawyer in England and Wales, but like Lord Archer is deemed fit to help shape those laws, influence the laws by making speeches, or even by proposing amendments.

Lord Haningfield of Chelmsford:
Lord Hanningfield also remains a member of the House of Lords despite being convicted of expenses fraud worth £14,000 in 2011 and jailed for 9 months. The offences related to false claims for London overnight expenses. Lord Haningfield, like Lord Taylor, defended himself on the basis that he had not acted dishonestly. Mr Justice Saunders, sentencing, said:

"It was perfectly clear from the terms of the scheme, as well as according with common sense, that a peer could not claim for travelling expenses that he did not incur"

There was also a subsequent acquittal in 2016 for similar alleged offences. On that occasion, the prosecution was stopped purely on the novel basis that parliament had ‘sole recognisance’ of the matter, and so the Crown Prosecution Service were barred from intervening.

Obviously, no other professional body would be able to outrank the Crown Court. The sovereignty of parliament can have interesting side effects.

Ian Paisley Junior MP:

Ian Paisley Jnr MP failed to declare in the Register of MP’s interests that he had enjoyed family holidays worth over £50,000 from the Sri Lankan government in 2013, shortly before lobbying the Prime Minister against supporting a UN resolution which was critical of Sri Lanka. As an effective ‘paid advocate’ Mr Paisley ought to have declared these interests, but failed to do so. It remains unclear what his explanation for that failure was. The consequence, when matters eventually came to light in September 2018, was that the Parliamentary Standards Commissioner suspended Mr Paisley from sitting in Parliament for 30 sitting days. Mr Paisley also avoided facing a by-election for his re-call as not enough voters in his constituency signed a petition in favour of it. Mr Paisley, as an MP of the Democratic Unionist Party returned to the House in November 2018. He remains a crucially influential MP for getting government business through.


Conclusion

In many ways therefore, the Fiona Onasanya debacle is nothing new.

When it comes to dishonesty and professional integrity, those who govern our country have long operated in a different regulatory universe to everybody else. The fact that she is being paid public money while imprisoned is simply a result of the vastly more lenient regime which politicians enjoy.

 

If you are a regulated professional and in need of advice and assistance in misconduct proceedings, or even an investigation, feel free to contact us here.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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