Offences created by the Legal Profession Act, 2004

Note: I drafted this post last financial year.  Since then, the value of a penalty unit increased today by about 3%, to $116.82, with the result that the dollar figures referred to below will be commensurately too low.  See the details at Quis Custodiet Ipsos Custodes.

Original post: I acted for a fellow whom the Law Institute as delegate of the Legal Services Board was purporting to investigate, and noticed for the first time what a rich repository of crimes is the Legal Profession Act, 2004. Two are punishable by imprisonment of up to 5 years or more: s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and s. 5.5.15 (interfering with property to defeat a receivership of a law practice). A third, s. 2.2.2(1) (unqualified practice) is punishable by up to 2 years’ imprisonment respectively. Eight are punishable by fines of up to about $27,000, about 25 by fines of up to about $13,500, about 57 by fines of up to about $7,000, and another 14 by fines of between up to about $500 and about $2,500. That’s over 100 crimes.  As far as I know, the only conviction is likely to have been under s. 3.3.21.

All of the offences punishable only by fines are summary offences: 600 penalty units (a fine of about $68,000) and imprisonment for up to 5 years being the level of seriousness which brings offences into the indictable category: see s. 112 read with s. 109 of the Sentencing Act, 1991.  So s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and 5.5.15 (interfering with property to defeat a receivership of a law practice) appear to be the only indictable offences created by the Act.  They may be prosecuted at any time, while all those punishable by fines, and unqualified practice, are summary offences which may generally be prosecuted only within 12 months after the allegedly criminal conduct occurred, by virtue of s. 26(4) of the Magistrates’ Court Act.  Do not allow an investigator under the Legal Profession Act, 2004 to investigate a summary offence if the conduct allegedly occurred more than a year beforehand!  (Whether the Legal Services Commissioner may entertain a disciplinary complaint more than a year after the relevant conduct is a more difficult question. See this post.)

I really wonder about the social utility of having all those crimes there. More and more crimes are created, and no less criminal activity is achieved.  Furthermore, no one (including some of the regulators, I suspect) knows that at least some of them are there, they have no dissuasive effect, and no one ever gets prosecuted.  One of the more interesting musings about the law I have read was Lord Justice Mummery’s address to the 24th Symposium of Economic Crime at Jesus College.  He pointed out that in the previous quarter century, Britain had created 3,000 new crimes, without achieving any greater lawfulness. Au contraire, he seems to have suggested. There are crimes which are routinely identified and not prosecuted (unqualified practice being an excellent example, which is usually dealt with instead by an application for an injunction to restrain it).  Regulators have unfettered prosecutorial discretion: the courts will not entertain a suit to restrain a prosecutor from prosecuting a crime on the basis that the prosecutor has been inconsistent or selective in prosecuting the putative claimant compared with others.  But there comes a point where the informed bystander will legitimately think that the regulatory prosecutor, having stood by having detected crimes and repeatedly done nothing about them, is just throwing the book at the person who does get prosecuted as a means of persecuting the individual for other characteristics disliked by the prosecutor. Whatever the law may say on the subject, the bloke who’s singled out for prosecution while everyone else gets away with it with impunity legitimately feels hard done by. It looks unfair, and diminishes confidence in the system of criminal justice, as does having a whole lot of criminal offences which everyone knows are never going to be prosecuted. This is not a reflection on the matter in which I acted, incidentally, but a broader rumination prompted by it in the context of Lord Justice Mummery’s comments.

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