John Hyde byline

John Hyde

The BBC recently ran a three-part series looking at the prosecution and execution of Ruth Ellis, the last woman to hang in Britain.

In 1955 it was treated as an open-and-shut case, where Ellis confessed to murder and the law had no wriggle-room to account for the circumstances in which she committed the crime, or her mental state when she pulled the trigger.

Even as Ellis headed to the gallows, the nation was torn: could there be degrees of murder and can we move away from a blanket punishment? 

The circumstances are obviously less emotive, but the debate has parallels with current discussions around the legal profession and how it handles dishonest solicitors.

Like murders, these cases are rare – certainly in comparison to the number of solicitors overall. But, like the law in 1955, we stand at a crossing point where we must decide how we treat those that err.

For the serial liars and the thieves, clearly a strike-off is essential. For those who panicked, who were scared of coming clean, who suffered from a diagnosed mental condition, there is a sense we should find an alternative.

The Solicitors Regulation Authority doesn’t seem to know either way. Already this year, the regulator has agreed a suspended sentence with one solicitor who fabricated an email, then launched an appeal after the tribunal imposed an identical penalty for a solicitor who backdated documents. Either position is arguable, but the lack of consistency is not.

Could the answer lie with another regulator? The Nursing and Midwifery Council this week opened a consultation on new rules around fitness to practise.

The body says that a ‘culture of blame and punishment is likely to encourage cover-up, fear and disengagement’ with the process. Instead the council wants to see its role as helping individuals to ‘learn and reflect’.

Fitness to practise would become about managing the risk that nurses pose to patients and taking account of the context in which the individual was working.

The consultation adds: ‘We may not need to take regulatory action for a clinical mistake, even where there has been serious harm to a patient or service-user, if there is no longer a risk to patient safety.’

There are clearly implications for open justice in taking away access to disciplinary proceedings that might have otherwise been public. But the proposal is food for thought for the SRA. The NMC seems to be looking at future ability to practise, rather than the mistakes made in the past. If a repentant solicitor has something more to offer, might they be afforded the same leniency?