The Upper Tribunal has published its decision relating to Jon Frensham, an IFA convicted of attempted sexual grooming of a child. FCA had decided to withdraw Mr Frensham’s approval and make an order prohibiting him from performing any function in relation to any regulated activity. It based its decision on its view that he was not a fit and proper person to perform any such function following his conviction and suspended sentence for the offence, which also saw him made the subject of an indefinite Sexual Harm Protection Order and added to the sex offenders register until 2027. The relevant events happened when he was an approved person.
FCA said the events showed Mr Frensham lacks integrity and included abuse of a position of trust and deliberate and criminal disregard for appropriate standards of behaviour. Although the offence was not committed at work and did not involve financial dishonesty, it did involve him in deviating from legal and ethical standards and seeking to exploit the vulnerable, which FCA considers fundamentally incompatible with working as an IFA. Quite apart from that, it said Mr Frensham had not been open and honest with it on several occasions.
Mr Frensham said FCA had wrongly applied the fit and proper test, not least because his conviction did not relate to any regulated activity, was not for an offence of dishonesty and was not committed at work – and that his work would not put him at risk of breaching the order places on him.
This was the first time the Tribunal had considered a case where FCA sought a prohibition order based on conviction for a criminal offence not involving dishonesty.
It dismissed the reference, after considering relevant provisions of the FCA Handbook and case law – including case law which determined that if a person lacked, or had material failings in, their “ethical compass” that person would lack integrity even if not dishonest – and that the standards of integrity expected of certain professionals are necessarily high.
The Tribunal’s view was that it would be widely recognised that most people who committed this offence would be considered to lack integrity, whatever their profession. But it needed also to consider how this impacts on fitness and propriety. It looked at other case law, which suggested that professional people should not be held to the standard of being “paragons of virtue”. It compared the case of a solicitor who had had a sexual encounter with a drunken junior colleague. In that case, the Court said the Solicitors’ Disciplinary Tribunal finding that this conduct affected not only the solicitor’s personal reputation but that of the profession was flawed. Against that, in another case where a solicitor had been convicted of sexual and racially aggravated assault against his ex-girlfriend, a court in fact lengthened the period of suspension from the profession imposed on him.
The question to be answered here was what effect would Mr Frensham’s conduct have on public confidence in his profession, were he allowed to continue in it.
The Tribunal went into significant detail of the background and facts, and criticised FCA’s behaviour, both in originally apparently basing the ban solely on the conviction and also not being properly prepared or producing the right witnesses for the Tribunal hearing. It also considered Mr Frensham’s evidence and his view of the circumstances both before and after the conviction (including when he did not tell FCA of previous warnings). It concluded that when the offence was considered in the light of the circumstances in which it was committed and Mr Frensham’s failure on several occasions to be open and honest with FCA, the decision to impose the ban was one reasonably open to FCA. So, seeking to link the offence itself with FCA’s consumer protection objective was not the right way to approach the matter. It was better to link it to the integrity objective, but more persuasive were the way in which Mr Frensham had breached bail conditions and consistently failed to be open and transparent with FCA. Overall, the flaws in the way FCA dealt with the matter were not sufficient for the Tribunal to overrule its decision, and moreover, if the matter were remitted back to the FCA, the Tribunal said it would inevitably make the same decision and would be entitled to do so.