What is appropriate?

The SSDT last sought your views on the appropriate Standard of Proof for professional misconduct cases back in 2019. Have they changed?

The Scottish Solicitors’ Discipline Tribunal (SSDT) welcomes the profession’s views on the appropriate standard of proof to be used in professional misconduct cases.

Currently, the SSDT applies the criminal standard of proof to the facts in cases of professional misconduct (beyond reasonable doubt). The SSDT has opened a consultation on whether it should instead apply the civil standard (balance of probabilities). The SSDT is now one of the few disciplinary tribunals using the criminal standard; the Faculty of Advocates still uses it, but the Solicitors Disciplinary Tribunal and the Bar Standards Board now apply the civil standard.

The SSDT last considered this issue in 2019. It decided to keep using the criminal standard for professional misconduct cases but indicated that the matter should be kept under review. Overall, individual solicitors and the bodies that represent solicitors accused of misconduct were in favour of the status quo, pointing to the punitive sanctions available to the Tribunal and the devastating effect they can have on careers and lives. Those groups already using the civil standard, and those who might benefit from it, supported change. They noted that the direction of change had been towards the civil standard in recent years, highlighting the positive effect this might have on public protection and public perception, and hoping that it might create some clarity in a confusing system.

All solicitors have an interest in this matter, and the SSDT would be delighted to receive views from a broad range of the profession and beyond. The Tribunal would welcome the views of those who have experience of SSDT cases, or work in other regulatory fields. The Tribunal is also interested in hearing the opinions of the wider public.

The consultation document is available on the Rules page of the SSDT website. Responses are sought by 5pm on 13th September 2024 and should be sent to enquiries@ssdt.org.uk using the subject heading ‘Standard of Proof’.