Truth and justice versus certainty and finality

I wonder how many ‘(wo)men on the street’ ever give any thought to the difference between law, truth and justice?

Would it surprise them, do you think, that justice treats the need for certainty as more important than the need for truth?

That judges in an adversarial system are not tasked with finding ‘the truth’ but, instead, are more like referees?

This hierarchy lies at the root of certain aspects of our legal system, such as the inability of a judge to raise evidence of their own volition; and the restrictive approach taken in relation to introducing new evidence on appeal.

In a system based on finding truth, one would imagine that any new evidence should be admitted on appeal if it was relevant to matters in issue.

In a system based on certainty and finality, creating rules which restrict the introduction of new evidence as part of the appellate process is more understandable.

In an adversarial system, in the normal course of events there are strong reasons for the emphasis on certainty and finality – as eloquently discussed by Lord Neuberger in his 2016 speech to the Singapore Panel on Judicial Ethics and Dilemmas on the Bench.

These reasons include the need to ensure that a trial brings proceedings to an end.

Certainty and finality are important aspects of the rule of law.

Given the finite resources of the courts, parties should generally be encouraged to deal fully and properly with the issues in the case at trial; rather than rely on an appeal process to raise issues which could (and perhaps should) have been raised initially.

UNEQUAL FOOTINGS

But one has to wonder how this plays out in professional disciplinary proceedings where the parties are not on an equal footing; and where much of the initial process is largely opaque – particularly investigations and initial decisions as to what allegations could be pursued.

The primary purpose of professional disciplinary proceedings is to ensure there is public confidence in the professions.

It is well documented that the collective reputation of a profession is its most important asset; and that the fortunes of an individual member of a profession must take second place to the need to uphold confidence in the profession.

On a policy level, it is rather difficult to reconcile that rationale with the concept that truth gives way to certainty.

How does it support a profession’s reputation if its members are censured because it is more pragmatic to censure them than to get to the truth of whether or not anything has gone wrong?

The consequences of professional sanctions can be severe; and they can often be more serious than necessarily intended because of market pressures, such as the impact of sanctions on indemnity insurance and accreditation schemes.

Thus, apparently benign restrictions on practice can, in practice, render a solicitor virtually unemployable.

Facing disciplinary proceedings is never easy. It is an immensely distressing and stressful experience.

The process can be intimidating and baffling; and many solicitors are unable to afford representation to help them navigate the process.

That is bad enough in the context of an oral hearing (when at least questions can be asked of the tribunal); but when sanctions are determined on paper by a Solicitors Regulation Authority (SRA) adjudicator, there is no such opportunity.

In theory, any unfairness arising from what’s essentially a paper exercise is capable of remedy if there is a right to an oral hearing on appeal. But is that really true in practice?

Since the High Court’s decision in the case of SRA v Arslan (2016), appeals against SRA adjudication decisions proceed by way of review rather than rehearing.

No oral evidence is likely to be admitted and the SRA may well object to oral evidence being adduced.

Any evidence that is not before the SRA adjudicator will be subject to the Ladd v Marshall test – meaning that if it was reasonably available before the adjudication decision it is likely that permission to rely on it on appeal will be refused.

The tribunal has dealt with a limited number of appeals since it was awarded its appellate jurisdiction. 

The SRA is a public authority for the purposes of exercising its prosecution role. 

Therefore, it isn’t easy to reconcile the restrictive approach to appeals with the overarching purpose of disciplinary proceedings – or to justify the importation of the pre-eminence of certainty in preference to adopting a more flexible approach to reach the truth of whether or not there has been misconduct.

In applying the approach prescribed by the High Court in the Arslan case, the tribunal’s role in fulfilling its appellate function is very restricted (despite its power under its own rules to regulate its own procedure).

It limits the tribunal’s role to considering whether the adjudicator was entitled to reach the conclusion they did on the material available to them, instead of asking whether the accused solicitor has actually committed misconduct and deserves to be sanctioned.

Whether or not the adjudicator was, in fact, wrong is not the material question.

In practice, this approach means that many solicitors facing adjudication proceedings would be well advised to request an oral hearing from the adjudicator; and to file witness evidence as if preparing for a full oral hearing.

From a personal perspective, it seems inherently wrong that a solicitor should be sanctioned and face professional consequences if they’ve done nothing wrong – or anything that was properly considered wrong at the time.

I don’t quite understand how the tribunal and, particularly, the courts can support a regime of professional regulation based on the presumption that the truth of what happened is less important than the procedure by which a decision is made.

Yet this is precisely the outcome that Arslan prescribes for the tribunal.

It’s all very well to recognise that the courts have finite resources; and that the need for certainty and finality is an important aspect of access to justice – particularly when one considers the costs risks associated with civil litigation.

However, where the aim is not to balance the rights of one party against those of another, but rather to ensure that the world can be confident of our adherence to professional standards.

I rather suspect that the (wo)man on the street would be surprised to learn that truth and justice are not at all the same thing.

Susanna Heley is a partner at RadcliffesLeBrasseur  rlb-law.com