SDT Consultation On Standard Of Proof In Lawyers' Disciplinary Proceedings

The Solicitors Disciplinary Tribunal (SDT) has recently issued its anticipated consultation (available here) on whether the standard of proof that it applies to disciplinary proceedings should continue to be the criminal standard ("beyond reasonable doubt"), or should be amended to the civil standard ("on the balance of probabilities").

Background

This consultation follows:

a Legal Services Board paper released in March 2014, in which it recommended that the civil standard of proof be applied across all legal professions; the case of The Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862, in which the Court suggested that the standard of proof applied by the SDT needs to be reconsidered article here); and the announcement made by the Bar Standards Board (BSB) on 24 November 2017 of its decision to change the standard of proof applied when barristers, and others regulated by the BSB, face disciplinary proceedings for professional misconduct, from the criminal standard to the civil standard see article here). The BSB will be applying the civil standard of proof from 1 April 2019. The current standard of proof

The current standard of proof used by the SDT in disciplinary proceedings is the criminal standard, meaning in practice that the Solicitors Regulation Authority (SRA) - as prosecutor - must prove the facts upon which it relies beyond reasonable doubt before a disciplinary finding is made by the SDT against a law firm or member of the profession. This is different to the standard of proof that the SRA applies when investigating professional conduct cases and, following the change by the BSB, makes the SDT an outlier among legal regulators. (Indeed, the Royal College of Veterinary Surgeons will now be the only other professional regulator in England and Wales applying the criminal standard when deciding on professional misconduct cases.)

In anticipation of this SDT consultation, the Law Society published a discussion paper for comment in October 2017, and expressed the view that the SDT should continue to apply the criminal standard, as that is the position reflected in the case law and because it is the most appropriate standard when a solicitor's livelihood is at risk. Some respondents to the paper pointed out that the SDT's conviction rate is sufficiently high and there is little evidence to suggest that the application of the criminal standard of proof has stood in the way of achieving fair outcomes.

On...