Summary of Opinion — Second Division, Inner House, Court of Session

Factual and Procedural Background

The Petitioner, the designated money laundering reporting officer of a small law firm, failed to lodge the firm's annual money laundering certificate by the required deadline (originally 30 April 2022, extended to 13 June 2022). The certificate was not provided until December 2022. Company A (the professional body responsible for supervising solicitors' compliance with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017) lodged a complaint with Company B and the matter was remitted back to Company A for investigation. A Professional Conduct Sub-Committee of Company A found that the Petitioner had committed unsatisfactory professional conduct, imposed a mandatory censure under section 42ZA(3)(a) of the Solicitors (Scotland) Act 1980 and a fine of £800. The Petitioner unsuccessfully appealed to the Tribunal and then petitioned this court seeking relief on multiple grounds.

Legal Issues Presented

1. Whether Company A had the power to make a conduct complaint to Company B (and thus whether the procedure adopted was competent and lawful).
2. Whether the sanctions imposed (mandatory censure and an £800 fine) were excessive, disproportionate or in breach of Convention rights (notably articles 6 and 8 of the ECHR).
3. Whether the Tribunal's decision was unreasonable or legally flawed such that this court should interfere.

Arguments of the Parties

Petitioner's Arguments

• The procedure adopted by Company A had no statutory basis and was therefore incompetent; reliance was placed on the decision in Cannon v Scottish Legal Complaints Commission [2020] CSOH 23 to argue that the body could not complain to itself.
• The Petitioner was not given an opportunity to appear in person before the sub-committee; alleged errors in the sub-committee's decision and an employee-prepared report indicated bias and breach of natural justice and article 6 rights.
• Insufficient weight was given to mitigating factors (serious accident, surgery and convalescence, small firm resources, arrangements made for clients); a censure and the level of fine were disproportionate.

Respondent's Arguments (summarised from tribunal reasoning)

• Company A's objects and powers under the Solicitors (Scotland) Act 1980 (section 1 and section 1(3)) permit it to take actions incidental to its regulatory and disciplinary functions, including making conduct complaints to Company B.
• No de facto unfairness occurred; the sub-committee considered the Petitioner’s representations, and the process afforded rights of appeal to an independent tribunal.
• The finding of unsatisfactory professional conduct and the sanctions (censure mandated by statute and a modest fine) were appropriate and within the available range of responses.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded stepwise. First, it examined Company A's power to refer and prosecute conduct complaints in the context of the 2007 Act and the 1980 Act and concluded there was no statutory bar to Company A making a conduct complaint to Company B, particularly in light of Company A's regulatory duties under the 2017 Regulations (Regulation 49(1)(d)). The decision in the earlier case relied on by the Petitioner was distinguished as addressing a different question (whether Company B itself could initiate complaints).

Second, the court assessed procedural fairness claims. It found no de facto unfairness, no appearance of Company A being judge in its own cause, and no breach of article 6, noting that Company A performs public regulatory functions with no personal stake and that the statutory appeal route to an independent tribunal (and thereafter to this court) provided key safeguards.

Third, on proportionality and Convention rights, the court held that a statutory censure was mandated by section 42ZA(3)(a) once unsatisfactory professional conduct was found; criticisms that the censure was arbitrary or contrary to ECHR should have been pursued by raising a compatibility issue with the Lord Advocate and Advocate General, which had not been done. The fine of £800 was found not excessive in light of the personal nature of the reporting officer's responsibilities.

Finally, applying the Hood standard for appellate interference, the court reviewed the factual record and Tribunal reasoning, accepted the mitigation reduced the finding from misconduct to unsatisfactory professional conduct, and concluded there was ample basis for the sub-committee's findings. No error of law, unsupported finding, fundamental approach failure, or unreasonable outcome was identified.

Holding and Implications

Petition refused.

Implications: The Tribunal's decision upholding the Professional Conduct Sub-Committee's finding of unsatisfactory professional conduct, the mandatory censure under section 42ZA(3)(a) of the Solicitors (Scotland) Act 1980, and the fine of £800 remain in force. The court identified no wider legal change or new precedent; its decision confirms that Company A may bring conduct complaints in the statutory scheme and that the procedural and substantive outcomes in this case were lawful and reasonable.