Changing Standards – The Standard Of Proof In Lawyers' Disciplinary Proceedings

The Bar Standards Board (BSB) announced on 24 November that it has decided to change the standard of proof applied when barristers, and others regulated by the BSB, face disciplinary proceedings for professional misconduct. Subject to approval from the Legal Services Board (LSB), the standard of proof will change from the criminal standard ("beyond reasonable doubt") to the civil standard ("on the balance of probabilities").

The BSB proposes to apply the civil standard to alleged breaches of its code occurring after 31 March 2019, in order to allow a period of preparation. The announcement follows the BSB's consultation on the issue over the Summer (see BSB Consultation on Standard of Proof in Lawyers' Disciplinary Proceedings).

The appropriate standard of proof in lawyers' disciplinary proceedings has been a source of debate for some time, with the discussion intensifying last year following the judgment of The Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862 (Admin) (known as the 'Arslan judgment'). The question will now be whether the Solicitors Disciplinary Tribunal (SDT), will make the same change.

Background to the BSB Decision

To date both the Bar Tribunals and Adjudication Service (BTAS) and the SDT have applied the criminal standard of proof in disciplinary proceedings. Towards the end of last year, Mr Justice Leggatt, in obiter comments in the Arslan judgment, expressed sympathy for the view that it is unsatisfactory and illogical for the SDT, acting as primary fact finder, to apply a different standard of proof from the SRA when carrying out a similar fact finding role. Further, he described the authorities in support of the current approach as 'ripe for reconsideration' (see Standards of Discipline: Judicial Comment on the Standard of Proof in SDT proceedings).

Following the Arslan Judgment, the BSB revisited the question of whether it should change its approach. The consultation received 101 responses, the majority of them opposing a change. The Bar Council and the Commercial Bar Association indicated that their members were evenly split as to whether there should be a change, and the Inns were also divided. The BSB announcement will not therefore be met with universal approval by the profession.

The BSB has stated that the change is an important step forward in modernising the regulation of the Bar in the public interest, and its view is that this, along with the new disciplinary tribunal...