Bar regulator mulls civil standard of proof in disciplinary proceedings

The Bar Standards Board has proposed lowering the standard of proof in disciplinary proceedings to the civil one, potentially making it easier to uphold allegations of misconduct against barristers and solicitors in BSB-regulated entities.

In a consultation, the BSB board said it has formed the view that ‘in principle, the civil standard is probably more appropriate in the public interest'.

The move echoes similar calls on the solicitor side of the profession, where the SRA has been pressing for the civil standard to be applied in the Solicitors Disciplinary Tribunal. SRA chief executive Paul Philip is confident the solicitors’ regulator is ‘pushing an open door’ on the issue.

The SDT itself is less convinced. Tribunal CEO and clerk Susan Humble has said Philip’s assertions, made in December last year, were merely a Christmas wish list. The key question when assessing evidence, she told Solicitors Journal at the time, was its cogency. ‘The more serious the offence, the more persuasive the evidence in support has to be,’ she said.

BSB professional conduct director Sara Jagger said the consultation was about ensuring that any change to the standard of proof wouldn’t undermine the efficiency of current procedures and the public’s trust in them.

‘We have robust procedures in place to make sure that the way in which we deal with complaints against barristers is both thorough and fair,’ said Jagger. ‘This means that the public can have confidence that any barristers breaching the standards expected of them will be held to account, and barristers can be assured that any complaints about their conduct will be dealt with fairly.

‘We want to know whether or not people think that changing the standard of proof used in disciplinary proceedings from the criminal to the civil standard would be consistent with these principles.’

Professional misconduct allegations at the Bar are investigated by the BSB’s professional conduct committee, which decides, on the balance of probabilities, whether the conduct under investigation breaches the Bar’s handbook.

Minor breaches are dealt with by way of fines or warnings. More serious ones are referred to the Bar Tribunals and Adjudication Service (BTAS) for consideration by a disciplinary tribunal.

Current rules provide that the tribunal ‘must apply the criminal standard of proof when deciding charges of professional misconduct and in deciding whether the disqualification condition has been established’.

This standard of proof plays a part the committee’s decision to refer a barrister to a tribunal. It must be satisfied that there is a reasonable prospect that they can prove the case beyond reasonable doubt and convince the tribunal to make a finding of misconduct.

Among legal regulators, the SRA has already adopted the civil standard for proceedings involving solicitors. Regulators in other sectors have also dropped the criminal standard in favour of the civil one. The medical profession, most notably, did so in the wake of the Shipman enquiry.

Other than the BSB, the only professional regulator still applying the criminal standard is the Royal College of Veterinary Surgeons.

Unlike BTAS, the Legal Services Act does not technically regard the SDT as a regulator, as it operates independently of the SRA or Law Society. This has allowed the solicitors’ tribunal to remain mostly untouched in the general push for the civil standard in legal services regulation.

The Arslan case last year provided fresh impetus for legal regulators to move to the civil standard. The decision did not decisively resolve the question but Legatt J’s comment about a change in ‘the climate and approach to professional regulation and discipline’ has been interpreted as a strong hint that the SDT should change its approach.

The consultation closes on Friday 21 July.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg