Michael Stacey comments on the High Court’s decision in Beckwith v SRA [2020] EWHC 3231 (Admin)

The extent to which professional regulation should reach into the personal life of the professional is an important and controversial topic. In the case of Beckwith v SRA, the High Court decided to overturn a finding of misconduct against a partner at a prominent law firm who had a sexual encounter with a junior colleague after an inebriated night out.

This judgment, handed down on 27 November, puts the cat firmly among the pigeons by calling into question the whole approach of professional regulators to conduct outside practice, with a stark warning that it risks undermining the legitimacy of the regulatory process.

The Court emphasises that disciplinary tribunals do not have carte blanche to decide what it means for a professional to act with integrity or behave in a way that maintains public trust in the profession and apply these concepts unfettered to a professional’s private life. Instead, these obligations must be defined by reference to professional rules, which themselves must be limited to those necessary to regulate professional conduct and fitness to practise and maintain discipline within the profession. Regulators must not make rules which extend ever further into the professional’s personal life.

Seriousness, relevance to practice and proportionality are the touchstones. While there is a need in some matters to hold members of a profession to a higher standard, the Court cautions that regulators should not fall into the trap of requiring professionals to be paragons of virtue in all matters. A professional who behaves badly in their private life may undermine their own reputation, but it does not follow that in doing so they lack integrity or undermine public trust in their profession. Abusing their position as a professional is a different matter.

Regulators are also warned against responding to popular outcry dogmatically: they should consider carefully whether the conduct in question falls within their remit. This judgment is likely to cause regulators to re-evaluate their approach, stemming the tide of sexual misconduct and social media cases which have been a priority for them in recent years.

A more focused and principled approach is to be welcomed, reducing uncertainty and the risk of unfairness and inconsistency in the present system. It must be right that media coverage (which may be ill-informed) is not sufficient to demonstrate that public trust in the profession has been undermined for regulatory purposes.