SDT to move to civil standard of proof
Change to civil standard in the public interest and will enhance profession's standing, tribunal says
Proceedings before the Solicitors Disciplinary Tribunal will move from the criminal to the civil standard of proof in November, ending years of wrangling with the SRA over the issue.
In December 2016, SRA chief executive Paul Philip contended that the move to the civil standard was like “pushing an open door” – a claim firmly rejected at the time by then SDT chief executive Susan Humble as “a mere Christmas wishlist”.
The move, which until then had long been resisted by the SDT, comes after a three-month consultation which attracted 28 responses and is now positively endorsed by the tribunal.
“The tribunal believes that the protection of the public interest, and the promotion of the reputation and standing of the solicitors’ profession will be enhanced by this change,” said tribunal president Edward Nally.
Nally also sought to appease concerns that the civil standard would increase the SRA’s chances of securing sanctions.
“For those who believe that this move will result in ‘easier’ prosecutions of alleged misconduct breaches I respectfully reject that proposition,” he said.
“The tribunal will continue to scrutinise robustly all allegation brought before it, and will continue to look for and identify cogent and compelling evidence before finding allegations proved.”
The SDT was the only main disciplinary body not to apply the civil standard bar the Royal College of Veterinary Surgeons, but Nally was keen to clarify that this wasn’t a determining factor behind the move.
“The fact that the tribunal is currently in a minority amongst other similar tribunals, in applying the criminal standard, was not a factor in its decision to alter its standard of proof,” he said.
“However,” Nally continued, “and to set this decision into context, the move to the civil standard means that the tribunal will be applying the same standard of proof as the majority of other professional disciplinary bodies and tribunals, including the Bar Standards Board which moved to the civil standard of proof for allegations of misconduct arising from 1 April 2019.”
Respondents to the consultation who were in favour of retaining the criminal standard of proof – including the Law Society – argued it provided sufficient safeguards to protect the public and maintain the reputation of the profession.
They also said the criminal standard ensured that allegations were thoroughly investigated before proceedings are instigated and that the evidence is tested before the tribunal.
The civil standard, they argued, was inappropriate given the seriousness of professional misconduct proceedings and the impact on a solicitor’s career if allegations, particularly those involving dishonesty, are found proved.
Those in support of the criminal standard said this was a matter of public perception and that other regulatory bodies applied the civil standard. Their main argument against keeping the criminal standard was that it could be viewed as the profession protecting its members.
The new rules are still subject to approval by the Legal Services Board and are scheduled to come into effect the same day as the new SRA handbook, on 25 November 2019.
Addressing wider issues of evidence, the SDT said in its assessmentof the consultation that the new rules were unlikely to affect the evidential test used by the SRA to decide on prosecution – whether there is sufficient evidence to provide a realistic prospect that the application will be upheld by the tribunal, whether the tribunal is likely to revoke a firm’s authorisation or to impose a penalty that the SRA are unable to.
The SDT said this evaluation will necessarily have to take into account the new standard of proof but that it did not anticipate this would alter the investigation and evidence gathering required on the part of the SRA.
“Irrespective of the standard of proof that the tribunal applies the tribunal expects the parties to place cogent evidence before it,” it said. “Whilst the SRA noted in its response that the use of the criminal standard of proof was costly the tribunal does not consider that the costs of bringing proceedings will be affected by the standard of proof it applies because of the need for clear and cogent evidence.”
Nevertheless, the SDT acknowledged the potential impact on individual practitioners if the civil standard of proof is introduced.
“It is possible that a change to the standard of proof might result in the SRA referring more matters to the tribunal because of a perception that it would be easier to secure a finding against a practitioner,” it said.
“However, balanced against this is the fact that SRA have significant disciplinary powers which they can and do exercise already for less serious matters of professional misconduct so that only the most serious professional misconduct is referred to the tribunal. In other words, the criteria for deciding whether a case is referred to the Tribunal are based on the seriousness of the allegations, not the standard of proof.”
However, and perhaps more worrying for practitioners, the SDT concluded that even if there were to be an increase in the number of matters referred to the tribunal and found proved due to a change in the standard of proof, then this might actually be in the public interest.
The safeguard for the practitioner, it argued, was the right to appeal to the High Court.