Standard of proof in the spotlight
Following the SRA's case against Leigh Day, is it time for the SDT to rethink its use of the criminal standard of proof, asks Iain Miller
The decision of the Solicitors Disciplinary Tribunal to dismiss all of the allegations made by the Solicitors Regulation Authority against Leigh Day, two of its partners, and a junior solicitor has thrown back into the spotlight the question of the SDT’s use of the criminal standard of proof.
A decade ago, it was generally accepted that disciplinary proceedings against professionals should be determined by the criminal standard. If a doctor or solicitor was to be removed from their profession, then it was right that it would only be in circumstances where the allegations against them had been proved to the highest standard.
This approach was also supported by case law. In Bhandari v Advocates Committee  3 All ER 742, the Privy Council observed: ‘In every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.’
This approach was followed in a case concerning solicitors, In Re a Solicitor  QB 69, and in Campbell v Hamlet  UKPC 19, where the Privy Council stated: ‘That the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession, their lordships entertain no doubt.’
However, shortly after Campbell was decided the plates began to shift. This change started with the fifth report of the Shipman inquiry, which recommended that the civil standard should usually be appropriate for General Medical Council cases. By 2010 all of the healthcare professions had moved to the civil standard.
In 2014, the Law Commission, in its report on the regulation of health and social care professionals in England, made the following observation: ‘It is not acceptable that a registrant who is more likely than not to be a danger to the public should be allowed to continue practising because a panel is not certain that he or she is a danger.’
The move to the civil standard by the healthcare profession left only three professions of note that continued with the criminal standard. The first is the veterinary profession: the standard is statutory in the Royal College of Veterinary Surgeons’ disciplinary proceedings.
The remaining two professions are barristers and solicitors. Notably, other legal professions such as licensed conveyancers and legal executives use the civil standard, and indeed this is the preferred standard of the overarching regulator, the Legal Services Board (as set out in its paper ‘Regulatory sanctions and appeals processes: An assessment of the current arrangements’). So the question really is, why in 2017 do both solicitors and barristers continue with the criminal standard?
The answer to that question lies partly in the cases referred to previously, and partly in relation to the governance arrangements of those two professions, most notably solicitors.
Solicitors and barristers
The determination of serious allegations in relation to solicitors lies not with the SRA as the regulator but with the SDT. That body is structurally independent of the SRA and its sole function is one of adjudication. Indeed, its origins can be traced back to the historical jurisdiction of judges over solicitors as officers of the court, which has been delegated to the SDT. While the SRA adopts a civil standard in its decision making, which includes imposing fines of up to £2,000, the SDT adopts the criminal standard.
The SDT’s procedure rules are themselves silent as to the standard of proof, but it has in various decisions taken the view that Re a Solicitor and Campbell are authority for the proposition that the criminal standard applies. While there is an argument that Re a Solicitor only applies to cases where the allegation is tantamount to dishonesty, it is practically very difficult to determine where to draw the line, and therefore the SDT has applied the criminal standard across the board.
In contrast to the arrangements involving solicitors, the Bar Standards Board does have a role in determining the standard of proof, as the Bar Tribunals and Adjudication Service applies the BSB’s Disciplinary Tribunal Regulations. This difference in governance reflects the difference in the way the regulation of the two professions has evolved. The BSB’s regulations specifically provide for the criminal standard in the light of the authorities described in this article.
On 2 May 2017, the BSB issued a consultation about adopting the civil standard across the board. While this is entirely consistent with the trends described here, it also reflects the impact of the decision of the Divisional Court at the end of last year in Solicitors Regulation Authority v Solicitors Disciplinary Tribunal  EWHC 2862 (Admin), normally referred to as ‘Arslan’.
That case concerned the question of what standard the SDT should apply when it exercised its appeal jurisdiction over SRA decisions on the civil standard. These mainly related to fines below £2,000. The court considered that on such appeals the SDT should apply the civil standard, and although the more mainstream SDT jurisdiction of first-instance disciplinary proceedings against solicitors was not before them, both Lord Justice Leveson and Mr Justice Leggatt made clear that they thought the regulators should review the continued use of the criminal standard.
The effect of Arslan is to throw into doubt that there remains any judicial support for the criminal standard. This is recognised in the BSB’s consultation, and it therefore seems likely that by early 2018 only the SDT will maintain the criminal standard among legal services regulators.
Direction of travel
All of this has left the SDT in an awkward position. While Arslan undermines Re a solicitor and Campbell, it could not and did not overrule them. They therefore remain good law. Nonetheless, the direction of travel is obvious. The only way this difficulty can be resolved is either by an appeal from the SDT on the question of standard of proof in relation to its first-instance decisions or a change to its rules, which are contained in the Solicitors (Disciplinary Proceedings) Rules 2007. The latter seems more likely and may only be a question of time.
In the Leigh Day case, the SDT needed to be satisfied that the factual basis of the allegations was proved to the criminal standard. We do not yet have the full decision but the fact that the tribunal was not satisfied to that standard raises the question of whether the outcome would have been different if the civil standard had applied. This is particularly so given that one member of the SDT panel dissented to the majority finding in relation to 12 of the 19 allegations.
However, some care needs to be exercised in concluding that the standard of proof made the difference. A point made by those who advocate the criminal standard is that in most, if not all, cases it makes no practical difference. This is because the facts in relation to solicitors’ cases are normally heavily documented. The debate around standard of proof is more about the public perception, as shown by the quote from the Law Commission.
A further reason why it may not make a difference is that the SDT’s decision involves two stages. The first is to determine the facts to the criminal standard, the second to decide whether those facts amount to professional misconduct. This second stage is not a question of proof but the exercise of discretion by an expert tribunal. For these reasons, the standard of proof may not have affected the outcome. Indeed, it may be that in its decision the SDT makes that clear.
Iain Miller is a partner in the regulatory department at Kingsley Napley