Discipline Tribunal south of border to adopt civil standard of proof

The civil rather than the criminal standard of proof is set to be adopted by the Solicitors Disciplinary Tribunal for England & Wales, which hears cases alleging profession misconduct by practising solicitors.

The move follows a consultation by the tribunal last year, and reflects a trend across other professional regulators. The tribunal will submit new rules incorporating the change to the Legal Services Board for approval, with the intention that they will apply from 25 November, to proceedings begun after that date.

It comes the week after the Scottish Solicitors' Discipline Tribunal opened a consultation on whether to make the same change in its proceedings (click here for report). The Bar Standards Board in England & Wales will apply the civil standard to allegations of misconduct arising from 1 April 2019. The Faculty of Advocates and the Royal College of Veterinary Surgeons, along with the Scottish Solicitors’ Discipline Tribunal, are the only other professional disciplinary bodies in the UK which still apply the criminal standard of proof.

Changing the standard would mean that cases can be proved on a balance of probabilities, instead of having to be proved beyond reasonable doubt as at present.

Supporters of the civil standard argue that it is not in the public interest for solicitors to avoid a disciplinary sanction when it is more likely than not that they are guilty of professional misconduct, and misconduct cases involving solicitors should not be subject to a different standard of proof than other professions. Opponents are concerned at the lack of safeguards since civil cases do not require corroboration and accept hearsay evidence, where the consequences of a disciplinary finding can mean loss of livelihood and reputation.

Edward Nally, President of the Solicitors Disciplinary Tribunal, commented: "I take the view that any modern regulatory or judicial tribunal, such as the Tribunal, must keep pace with trends in a fast developing environment. We should lead on a key issue such as this, which is what we are seeking to do here. Our overriding consideration always has to be the maintenance and protection of the interests of the public. Added to that must be the maintenance, and indeed enhancement, of the reputation and standing of the solicitors’ profession."

He added: "For those who believe that this move will result in 'easier' prosecutions of alleged misconduct breaches I respectfully reject that proposition. The Tribunal will continue to scrutinise robustly all allegations brought before it, and will continue to look for and identify cogent and compelling evidence before finding allegations proved."

The Law Society of England & Wales reacted with disappointment to the news. President Christina Blacklaws said: "The high success rate for prosecutions at the SDT – 98% in 2015-16 – shows the Solicitors Regulation Authority has been perfectly able to bring cases meeting the criminal standard of proof 'beyond reasonable doubt’.

"We reflected our members' views in our response to the tribunal's consultation, together with the case law that supports the tribunal in establishing facts on the basis that they are beyond reasonable doubt, so it is disappointing that the Solicitors Disciplinary Tribunal intends to move to a standard of proof that is merely ‘in the balance of probabilities’.

"There is an inequality of arms between an individual solicitor and the well-resourced regulatory body, and so the SDT’s assurance that it will continue to require the regulator to meet a high standard of proof where any misconduct has been alleged is reassuring."

Insurers have expressed support for the proposal, which was recommended in a report of the Insurance Fraud Taskforce in 2016, as providing greater public protection and making it simpler and less costly for the SRA to prosecute in appropriate cases.