SRA v Beckwith turned on two allegations said to be breaches of the principles under the SRA Code of Conduct 2011, namely that a solicitor must: act with integrity (principle 2) and behave in a way that maintains the trust the public places in you and in the provision of legal services (principle 6).
- In May 2016, [Mr. Beckwith]* kissed or attempted to kiss Person A; and/or,
- On 2 July 2016, [Mr. Beckwith] initiated and/or engaged in sexual activity with Person A.
It was alleged the behaviour was unprofessional because:
- [Mr. Beckwith] was in a position of seniority and/or authority over Person A in that he was a Partner in the Firm, Person A’s supervising Partner and Person A’s appraisal Partner;
- Both [Mr. Beckwith] and Person A were intoxicated;
- [Mr. Beckwith] knew or ought to have known that Person A had given no indication that such conduct was wanted (in May) and (in July) [Mr. Beckwith] knew or ought to have known that Person A was heavily intoxicated to the extent that she was vulnerable and/or her judgement and decision-making ability was impaired. [Mr. Beckwith] knew or ought to have known on 1 or 2 July 2016 that Person A had not invited him to her home; [Mr. Beckwith] knew or ought to have known on 1 or 2 July 2016 that Person A had not allowed him into her home with a view to sexual activity taking place; and/or, In all the circumstances [Mr. Beckwith] knew or ought to have known that his conduct was an abuse of his position of seniority or authority and/or was inappropriate
- Importantly, such allegations had to be proved to the criminal standard (beyond reasonable doubt).
Other facts of some relevance were that:
- Person A resigned from the Firm in June 2016 and left the Firm on 8 July 2016.
- At a time unspecified in the judgment Person A spoke to Person E, a senior member of the team who, “was horrified and quite surprised.” Person A had an exit meeting with HR but did not mention what had happened.
- In November 2016, she wrote an email to Mr. Beckwith saying, “You took advantage of me when I was too drunk to decide. You bought me too many drinks – more than most people could handle – and invited yourself into my flat because you wanted to ‘use my bathroom’. It must have been obvious that I was too drunk. I could hardly walk – I couldn’t open my front door and I remember falling at least twice. The fact that you still thought, in those circumstances, that it was ok to try and have sex with me is genuinely troubling. I am worried that you have done it before and/or will do it again.”
- After a while, Person A reported the matter to the Firm. Following the Firm’s investigation, Person A was concerned that the matter had not been taken seriously so wrote to the senior partner. In particular, Person A was concerned that [Mr. Beckwith] remained a training partner and mentor.
- A final written warning was given to Mr. Beckwith on the basis that his conduct had fallen below the standards expected of a partner. The investigation into his conduct seems to have found that Mr. Beckwith had abused his position of power.
- On 14 August 2017, Person A submitted a complaint to the SRA in relation to [Mr. Beckwith].
The First Kiss?
The attempted or unwanted kiss (the May incident) was disputed. Person A’s account was she told a friend about it shortly afterwards, but that friend gave evidence that she had not told her about until sometime later (after the July incident ) when she had said there, “had been a strange moment at the bar when she thought [Mr. Beckwith] might kiss her.” This, it seems, in the context of a distressed conversation about whether Person A might have done something to lead on [Mr. Beckwith]. [Mr. Beckwith] gave evidence that he had, “a vague recollection of bending to kiss her on her head as he did with friends and family.” And recalling ‘Person D’, “looking at him…. wagging his finger and shaking his head. That may have been the reason that he had not kissed Person A on the head.”
Witness B also gave evidence about a kiss she said she had been told by Person A took place on the fateful night in July.
She recounted that Person A told her that Person A met [Mr. Beckwith] in a corridor and he had kissed her. Witness B explained that from what Person A described “the kiss was intimate rather than how I would kiss a friend”. As to Person A’s reaction, Witness B explained that she either pushed him back or pushed her hands against his chest and looked at him. Person A denied that this had taken place. During the Firm’s investigation, Person A described the suggestion that she was kissing [Mr. Beckwith] passionately in a pub full of people to be “absurd”.
In what may reflect the evidential burden on the applicant:
The Tribunal considered that there were some parts of the evidence of both Person A and [Mr. Beckwith] that it could not accept. In the main, it had found them both to be credible and reliable witnesses, each providing what they considered to be accurate versions of the events.
The Tribunal considered that it could not prefer the evidence Person A over that of [Mr. Beckwith] or vice versa. The Tribunal could not be sure that [Mr. Beckwith] had kissed Person A as alleged. Accordingly, the Tribunal found allegation 1.1 not proved and that allegation was dismissed.
The July Allegations
The July Allegations are considerably more serious. Person A’s evidence included: Her being drunker than she had ever been, and suffering some blackout or memory losses. And, finding herself with Mr. Beckwith in a state of some undress, with Mr. Beckwith touching her body; trying to stop him but having had so much to drink she was unable to push him off. Also, “She did not know how far the physical contact had gone or whether intercourse had taken place. That was something that had been difficult to contemplate and deal with.”
She said she had, “considered reporting the matter to the police but did not feel ready to undergo the process that a report to the police would entail.”
Mr Beckwith’s case was in essence that, “The explanation [was] that she had a drunken, consensual encounter with her married boss, about which she was then mortified and so had created an account in which she was not to blame, was the only explanation which fit all of the facts.”
What did the Tribunal find:
- The Tribunal did not accept part of [Mr. Beckwith]’s account that, “Person A had touched [Mr. Beckwith]’s arm in a flirtatious manner as described by him.”
- The Tribunal did find that [Mr. Beckwith] and Person A had kissed whilst downstairs in the pub. The Tribunal could not be sure whether this was a fleeting and unwanted kiss as described by Witness B, or a mutually prolonged kiss as described by [Mr. Beckwith] (Person A said the kiss had not happened, and that Witness B was confusing the May kiss with the June one).
- The Tribunal found that there had been an agreement to share the taxi: “the case was clear from Person A’s evidence, notwithstanding that she stated that she did not want or invite [Mr. Beckwith] into the taxi.” So perhaps they are saying she agreed but neither wanted nor invited him into the taxi.
- The Tribunal found that Person A had agreed that [Mr. Beckwith] could come in to use the toilet.
- The tribunal declined to decide between competing accounts of how visibly drunk Person A was (in particular whether she had fallen over repeatedly and struggled to open the door of her flat). They similarly declined to make findings on their state of (un)dress.
On the matter of consent there is a rather strange stand-off:
“The Applicant [the SRA] considered that consent was not an issue that needed to be determined. [Mr. Beckwith] considered that consent was a central issue and that without a determination as to consent, the Tribunal would be unable to consider whether [Mr. Beckwith]’s conduct was in breach of the Principles as alleged.”
“The Tribunal found that it was for the Applicant to put its case on the basis that it deemed appropriate. The Tribunal would assess the evidence that it heard, and make a determination as to whether the Respondent’s conduct was in breach of his duties. It was not for the Tribunal to consider matters that had not been alleged; to do so would be improper. Accordingly, the Tribunal did not find that a failure to raise consent as an issue in this matter meant that it was unable to consider whether the Respondent’s conduct was in breach of the Principles as alleged.”
So although Mr. Beckwith’s case was that Person A consented, and Person A’s case was that she did not, the Tribunal made no finding on it, because the SRA claimed, and they agreed, it was unnecessary to their decision. They did nonetheless find that:
- [Mr. Beckwith] was in a position of seniority and/or authority over Person A in that he was a partner in the Firm, Person A’s supervising partner and Person A’s appraisal partner.
- “[T]hat [Mr. Beckwith] knew that Person A was heavily intoxicated and that her judgement and decision making ability was impaired.” Although not that, “Person A was vulnerable.
- That Person A had allowed [Mr. Beckwith] into her home to use the bathroom.
- It was, “not suggested that [Mr. Beckwith] had used his authority over Person A to convince or induce her to engage in sexual activity,” or, “that [Mr. Beckwith] had abused his authority or manipulated Person A by abusing his authority.” And so the, “allegation that [Mr. Beckwith]’s conduct was an abuse of his position of seniority or authority was not sustainable.”
- But, “that [Mr. Beckwith] knew that Person A’s judgement and decision-making ability was impaired. He knew that she had been drinking a significant amount of alcohol. Indeed, he had purchased a significant amount of alcohol for her.”
- He knew that he had only been invited into her home to use the bathroom, and that he was the one that had stated that he needed to use the bathroom. The Tribunal found that in all the circumstances, the Respondent knew that his conduct, in engaging in sexual activity with Person A, was inappropriate.
In deciding what is inappropriate Counsel for Person A states, “The Tribunal would need to be satisfied that [Mr. Beckwith]’s conduct was inappropriate for a solicitor in order to find that the allegations against him proven. However, there was a strong public interest in ensuring that people (including, but not limited to, those in junior positions) encountering solicitors in a professional context should have confidence that they will not be subjected to inappropriate behaviour of the sort alleged against the Respondent in this case.”
The SDT is not as clear as we might hope about what is the behaviour that is being criticised here as breaching the relevant principles. I am left wondering if the failure to discuss consent is the thread that pulls at a Gordian knot? Is the unprofessional behaviour the excessive drinking with colleagues? Entering the house for a pee and then making a pass? Making a pass in circumstances where it is not clear whether such advances were wanted (he says he thought so) or unwanted (she said clearly not)? That to my mind must be important: there are certain relationships one cannot have (professor and student, I would say) and ones where one would have to be extremely careful (Partner and Associate). How does that sit with the claim that he did not abuse his authority (one would not need to abuse one’s authority to take advantage of it, might be the obvious retort). Is the case that (our non-relevant friend) consent was vitiated, limited, or otherwise undermined by booze and hierarchy? Was such behaviour indicative of lack of integrity? They just don’t seem to want to say. Perhaps the simple words of Persona A’s email capture it best, “You took advantage of me when I was too drunk to decide.” The SDT don’t say he did, but they do say he won’t do it again. Extraordinary really. And yet the SDT moves quickly to establish the breaches of relevant principles:
The Tribunal determined that [Mr. Beckwith]’s conduct affected not only his personal reputation, but the reputation of the profession and thus was a matter that ought to bear the scrutiny of the regulator. In addition, the Tribunal found that whilst the subject matter and the particular circumstances of these proceedings was novel, the application of Principles 2 and 6 to a solicitor’s private life was not. Accordingly, the Tribunal found that it was proper to assess whether or not [Mr. Beckwith]’s conduct was in breach of the Principles as alleged.
…That [Mr. Beckwith] had failed to maintain the trust the public placed in him by conducting himself in the way that he did, was clear. Members of the public would not expect a solicitor to conduct himself in the way that [Mr. Beckwith] had. Such conduct, the Tribunal found, would attract the approbation of the public. Accordingly, the Tribunal found beyond reasonable doubt that [Mr. Beckwith]’s conduct was in breach of Principle 6 as alleged.
When considering whether [Mr. Beckwith]’s conduct lacked integrity, the Tribunal considered the oral and written testimonial evidence presented on his behalf. The Tribunal found that [Mr. Beckwith]’s conduct had fallen below what was expected of him by members of the public and of the profession. [Mr. Beckwith] had accepted that his conduct had fallen below the standards expected of a partner at the Firm, by virtue of his acceptance of the final written warning. The Tribunal did not consider that the standards employed at the Firm were any higher than the standards of the profession in general. [Mr. Beckwith] had sought, in his evidence, to suggest that he considered that his standards had fallen below expectations on the basis that he was married. The Tribunal rejected that explanation. There was nothing in the final warning letter or any of the relevant investigatory documents that suggested that [Mr. Beckwith]’s conduct had been assessed through the prism of his marriage. The fact of his marriage, whilst highly relevant to [Mr. Beckwith] personally, was irrelevant to the Firm’s findings and irrelevant to the Tribunal’s assessment of his conduct. For the avoidance of doubt, whilst it had been the Firm’s finding (and [Mr. Beckwith] seemingly accepted) that [Mr. Beckwith]’s conduct had fallen below accepted standards, the Tribunal’s finding was based on the evidence that it heard and not on the Firm’s view of his conduct. That the Firm and the Tribunal were in accord in their assessment of [Mr. Beckwith]’s conduct was, the Tribunal determined, indicative of the expected standard of conduct of the profession. Accordingly, the Tribunal found beyond reasonable doubt that [Mr. Beckwith]’s conduct was in breach of Principle 2 as alleged.
No doubt our actual judgments on the case will be coloured by whether we think Person A really consented, and what Mr. Beckwith really understood or if he was interested in understanding. I am going to resist the urge to editorialise the evidence, but sceptics on either side will find ample room for argument in an unexplained forty minutes; which kisses might have occurred when; the imagined kissing of senior partner heads; and, the idea that one cannot find room to snog in a taxi. It also seems really odd to me that key parts of the respondent’s case were not put to Person A in cross-examination, but perhaps this is the normal error of adversarial cut and thrust (I doubt it though).
One cannot doubt, at least I do not, that cultures of alcoholic excess and sexual harassment in law firms (and incidentally academia) need tackling with urgency. Bringing and winning such cases is key to regulation in the area and culture change. It may seem churlish to demand it, but as the case is to be appealed, we may yet find out that the SDT’s reasons, or lack thereof, come back to bite them. The judgment’s lack of clear and persuasive reasoning ill-serves the gravity of the situation.
* I have changed the SDT’s use of the Respondent to [Mr.Beckwith] in quotations and summaries as I think this reads better.