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15 April 2019

The Solicitors Disciplinary Tribunal has lowered its standard of proof: the reasons why and the concerns of solicitors

6 mins

The Solicitors Disciplinary Tribunal (SDT) has confirmed in a statement published 01 April 2019 that they are changing the standard of proof in disciplinary proceedings before the Tribunal.

The standard of proof in the SDT is currently the criminal standard, which means it must be proven ‘beyond a reasonable doubt’ that the events being alleged occurred, i.e. there is no other logical explanation than that the criminal offence was committed by the defendant.  After a consultation process took place from 16 July to 8 October 2018, the Tribunal decided that this standard of proof will be replaced by the civil standard of ‘balance of probabilities’, which is a significantly lower threshold to meet. To satisfy this standard of proof, it has to be shown that it is more likely that the alleged events occurred than it is that they did not occur.

This change is in line with the move to greater protection to the public interest in professional conduct proceedings. Edward Nally, the president of the SDT, said that “Our overriding consideration always has to be the maintenance and protection of the interests of the public.” The response to the consultation released by the Tribunal states that the “overriding objective is to ensure that all cases brought before it are dealt with justly and in accordance with the Tribunal’s duty to protect the public from harm” and that “the civil standard provides better public protection”. 

Mr Nally further stated that “any modern regulatory or judicial tribunal, such as the [SDT], must keep pace with trends in a fast developing environment”. This appears to infer that the SDT in making this change is following suit to the Tribunals of other professional disciplines by using the civil standard as opposed to the criminal standard. However, in the statement published 01 April 2019, the Tribunal refuted that they are lowering the standard of proof because other Tribunals use the civil standard. They stated that they made the decision they found appropriate after considering the submissions made in the consultation and not “simply because it is out of step with other regulated legal professionals.”

The Law Society has called the decision disappointing. They stated the high success rate of 98% for prosecutions at the SDT in 2015-2016 shows that the current criminal standard of proof is not preventing bad practising solicitors from being penalised.  In their statement of 01 April 2019, the Tribunal have said that data regarding prosecution success rates cannot be verified as accurate by them. They further stated that there were many cases with numerous allegations being brought by the SRA, where some but not all of the allegations are successful. Therefore, measuring success rate does not account for how many allegations in any one proceeding is successful.

In the statement of 01 April 2019, the Tribunal summarised and refuted some of the opposing submissions made in the consultation process:

  • One argument made in the submissions opposing the introduction of the civil standard of proof is that this standard is too low. Successful prosecutions in proceedings against solicitors have severe consequences, therefore a high standard of proof must be used to be proportionate to the potential consequences. The Tribunal have responded by stating that the change in the standard of proof will not alter the investigation and evidence gathering necessary before the test can be properly applied. The Tribunal will still expect parties to provide cogent evidence in their cases and the Tribunal will continue to scrutinise this evidence with as much care. Further, the more serious the allegation the more cogent the evidence would have to be to prove the allegation, regardless of the standard of proof that applies. It can be asked whether the cogency of evidence required in a case can ever be separated from the standard of proof. If a successful prosecution requires a lower standard of proof, does it not necessarily follow that the evidence put forward by the prosecution does not need to be as cogent?
  • The Tribunal acknowledged that the lower standard of proof may result in the SRA making more referrals to the Tribunal. However, they stated that this was counter-balanced by the fact that the SRA have their own disciplinary powers, which would mean the SRA would only refer the most serious matters to the Tribunal. Therefore, the deciding factor of referralis not thestandard of proof but the seriousness of the allegations

Some submissions in opposition to the civil standard being introduced raised the point that proceedings in the SDT can involve allegations of a criminal nature. The Tribunal said that this does not necessarily mean that a criminal standard of proof has to be used. The Tribunal provided the example of care proceedings where alleged breaches of professional duties have resulted in harm to a child, the allegations may involve criminal activity but a civil standard of proof is still applied.

  • The Tribunal argued that there is no real difference between solicitors and other professionals, giving the examples of doctors, in regards to protection of public interest. Therefore, solicitors having the benefit of a higher standard of proof that needs to be overcome to prosecute them in the SDT is not justified

The Tribunal raised in their statement the point that protection of the public interest is a mutual interest of professionals, who need their industry to be reputable and trusted. They quote Lord Bingham in the case of Bolton v The Law Society, who said that “A profession’s most valuable asset is its collective reputation and the confidence which that inspires”. This is a sentiment that can be agreed to by most solicitors. It is important that solicitors in breach of their professional duties are held accountable, so that the confidence the public have in other solicitors and the profession as a whole is not tainted.

But what about the trust the professionals have in the Tribunal? There is concern that a lower standard of proof could potentially lead to an increase in the likelihood of miscarriages of justice against individual solicitors. In their response to the consultation, the Tribunal stated that the “safeguard for the practitioner is the right to appeal to the High Court” and that the decision to lower the standard of proof was the “correct position to take, notwithstanding the possible consequences that an adverse finding may have on a practitioner”.

Subject to the Legal Service Board’s decision and the making of the Statutory Instrument, the Tribunal hopes for the new rules to come into force on 25 November 2019 to coincide with the date on which the new SRA rules come into force.

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