On the Front Line between the Regulatory and the Criminal

The case of Phil Shiner, a leading Humans Rights lawyer struck off by the Solicitors Disciplinary Tribunal (SDT) in early February illustrates the grave dangers in obtaining clients through dubious means – and where that can lead.

Mr Shiner, a former team leader at Public Interest Lawyers (PIL), did not attend his final SDT hearing and claimed he could not afford a defence lawyer.   Before the hearing, he had admitted acting recklessly by publically claiming that UK soldiers had unlawfully killed, tortured and mistreated Iraqis during the occupation, as well as making direct and unsolicited approaches to potential claimants in these alleged actions. In doing so, Mr Shiner had accepted he had acted without integrity, but he always denied dishonesty.

The al-Sweady inquiry was set up in 2009 to examine allegations that 28 Iraqis were unlawfully killed by British troops in May 2004, that their dead bodies were then mutilated by those troops, and also that Iraqi detainees were ill-treated.

Several claimants heard at the Inquiry lost credibility after it was found many had lied repeatedly, in what was termed by Ministry of Defence lawyers as a ‘criminal conspiracy’ to pervert the course of justice in pursuit of compensation.  Needless to say, the claimants’ false claims also put entirely innocent members of the Armed Forces through years of very stressful accusations.

In December 2014, the Inquiry found mistreatment had been committed by UK troops against 9 Iraqi detainees. But this was largely overshadowed by its headline finding that the allegations of murder were “wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility”.

Regulatory investigations into the lawyers concerned gained traction, with the result that PIL was closed down in 2016 and Mr Shiner has now been struck off, an ignominious end to his career with a bill which could reportedly run into millions of pounds. Mr Shiner’s interim costs order from the Solicitors Disciplinary Tribunal alone is £250,000.

Publication of the full SDT judgment is expected in March 2017, at which point Mr Shiner will then have three weeks to lodge any appeal. But whilst we await the full judgment, we do have the SDT's headline findings.  Mr Shiner was found guilty by the SDT of 22 charges in total including:

• Authorising PIL to enter into a 2015 agreement providing financial benefits to a ‘fixer’ to change his evidence to the al-Sweady Inquiry,
• Dishonesty in presenting that changed evidence to the Inquiry without explanation,
• Dishonesty in sanctioning and approving emails which did not describe the true reason for that agreement,
• Dishonesty in responding to two questions from the Solicitors Regulation Authority during its investigation.

Notably, it does not appear Mr Shiner was involved in actually colluding with witnesses to give false testimony about abuse, or murder, by UK troops. Rather, he was engaged in routinely 'touting' for referrals by paying the ‘fixer’ £500 for each new client brought in.  On this basis, Mr Shiner may actually have represented those clients quite properly, but had used dubious methods to procure them. His ultimate downfall, it seems, was that when confronted by the SRA, Mr Shiner did not 'come clean' about it. Instead he misrepresented the purpose of these payments to the ‘fixer’, including a payment to the ‘fixer’ for changing his own evidence to the Inquiry. This, it appears, is where the dishonesty finding lay, and made Mr Shiner’s striking off virtually inevitable.

Overall, it seems we can already draw two important lessons.

Firstly it is deeply unfortunate, or at the very least premature, to conclude that Mr Shiner personally misled the al-Sweady Inquiry.  The Inquiry reported back over two years ago. The proof of the pudding is surely in the eating. Had there been evidence to support a perverting the course of justice charge, would Mr Shiner not have been prosecuted by now?  Those vilifying him in this way might be politely reminded that no such prosecution was ever brought, and it is unfair to construe Mr Shiner’s work as simply part of a ‘criminal conspiracy’ designed to obtain undue compensation.

The second lesson here is that when one is in a regulatory hole - stop digging, and stop dissembling. Across a whole range of professional improprieties, whether it be lawyers, medical practitioners or the police: all too often we find it is not the original wrongdoing that does the real damage, but rather the botched attempt at covering it up afterwards.

At Brett Wilson LLP we represent professionals of various disciplines across a range of misconduct and regulatory investigations.