Criminal or civil? That is the question.

The Solicitors Disciplinary Tribunal has confirmed that it will consult on where to set the standard of proof when determining allegations of misconduct against solicitors.

The Bar Standards Board is also looking at a new civil standard of proof for practitioners who face allegations of misconduct, downgrading it from the current criminal standard of proof. The BSB can do this but in contrast the SRA cannot because it does not have the power to make such a change, although I am sure it would very much like to do so. The change can only come from the Tribunal or in legislation.

The SRA has been quiet of late on this issue, although it plainly wants a lower standard to address what it sees as a handicap when prosecuting.

The SDT's President, Edward Nally has summarised the position perfectly:

"The SDT will remain the master of its own destiny in this debate. Its membership will do what it believes to be right in a rational, informed, evidence-based manner. The SDT will lead on the issue of the standard of proof applied in its proceedings on its own terms and in its own time and will not be distracted by the sometimes ill-informed rhetoric of others. The SDT is watching the BSB consultation with interest, recognising that the Bar’s tribunal is a smaller body than the SDT with different issues."

Calls for change have not thus far been based on evidence, but have resulted largely from pressure exerted on the SRA by others who see it as failing to secure convictions before the SDT. In defending itself the SRA has bemoaned the high standard to proof it has to meet.

When the SRA prosecutes an application before the Solicitors Disciplinary Tribunal it has to prove allegations to the criminal standard. It has for some time been pressing hard to change this to the lower civil standard, and will doubtless continue to do so. Many commentators observe, more with resignation than enthusiasm, that it is only a matter of time before this happens.

Historically the SRA has fought shy of testing the standard of proof in the Higher Courts even when it has had an opportunity to do so. It therefore embarked on an alternative strategy of persuasion outside the courtroom. It has done this in a number of ways.

The SRA was a notable stakeholder contributor to the Insurance Fraud Taskforce, which reported in early 2016. The report makes clear that other stakeholders expressed concern the SRA was not doing enough to tackle dishonest solicitors. In its defence the SRA submitted its ability to enforce standards of professional conduct, in the public interest, was hampered by the use of the criminal standard. It argued, by implication, that the criminal standard made prosecutions and therefore enforcement problematical. The answer, said the SRA, is to lower the bar.

This argument was never supported by any evidence. My own experience tells me that the problem, if it truly exists, will be tiny but is unlikely to be a product of the burden of proof. The process is adversarial and sometimes the SRA loses. That’s court life.

The real answer to this will be found in good quality forensic investigation work followed by a properly formulated and presented prosecution. The SDT will find allegations of misconduct not proved when there is either a deficiency in the prosecution, or the prosecution evidence and arguments, or where it prefers to accept the solicitor’s evidence. Where clear forensic or other evidence is obtained and presented, there is no problem with the existing burden of proof.

Another argument deployed is that the SDT is now in a minority of regulatory tribunals that applies the criminal standard, and so it should follow the others.

The SDT is a significant regulatory tribunal and is widely respected as a fact finding court. Compared with the SDT many other regulatory tribunals are quite small and so the comparison argument is not a good one. When it does find dishonesty the SDT almost without exception strikes from the Roll. By comparison other Tribunals do not always do this. It is right that before an inevitable strike off the Tribunal should be sure of dishonesty to a high standard.

My concern is that a lowering of the standard of proof will lead to a lowering of the standards of evidence gathering and prosecutions.

The SRA also argues it is illogical it makes certain regulatory decisions on a balance of probabilities and that the SDT then applies the criminal standard when reviewing these. The SRA drew support from remarks in SRA v SDT 2016 EWHC 2862 (Admin). In that case, involving a Mr Arslan, the SDT was a reviewing court and not a primary finder of fact. By far and away the majority of the SDT’s decisions are made when it is a primary fact finder. Arslan is not therefore a good argument for wholesale change and in deploying it SRA fails to draw a distinction between a court of review and one of primary fact finding.

I am aware of very few who actually do this work who support a lowering of the standard of proof. Many highlight the terminal effect a finding of dishonesty has on a solicitor’s career and that it is right a regulator should be required to clearly prove dishonesty. I agree with this approach, and in over 20 years as a prosecutor and defender before the SDT I cannot say that the higher standard has hampered a prosecution. It really should not be beyond the SRA with its resources to obtain appropriate and compelling evidence and present prosecutions convincingly and properly.

That is how it should conduct its enforcement.

Comments

No comments so far - why not be the first?

@
http://
(HTML markup not supported)
The article below was printed in the Law Society Gazette and prompted quite a discussion! In September 2018 I described how the SRA were dealing with solicitors convicted of drink driving, and the need for a more discerning and informed
A much simpler set of Accounts Rules will come into force in November 2019, and will for the first time give firms, managers and sole practitioners considerable flexibility on how they go about complying and dealing with client money.
The Leigh Day appeal reaffirmed some basic principles for appeals of SRA judgements
The Solicitors Disciplinary Tribunal regularly deals with applications brought by the SRA following the conclusion of criminal proceedings against solicitors. The conviction sometimes forms the entire basis of the proceedings, but otherwise
In late 2013 Aidan Loy committed three drink driving offences for which he was sentenced in December 2013 and February 2014. The second two offences were dealt with together, and as they were all committed in a very short period of time with
The recently published judgment in Forz Khan v Bar Standards Board provides insight into the professional consequences of careless talk and use of LinkedIn. It comes hot on the heels of an SDT judgment in Deborah Daniels who was prosecuted by
LawCare released striking statistics at the beginning of 2018 which show the number of lawyers calling for help is increasing. Lawyers' mental and emotional health has been slowly creeping up the agenda and even the SRA is recognising
The Solicitors Disciplinary Tribunal is now consulting on whether to reduce the standard of proof in disciplinary cases from a criminal to a civil one.
Solicitors have been warned to watch their language and it is highly likely that other regulators will adopt a similar approach.
Solicitors and firms are required to report to the SRA promptly, serious misconduct but what constitutes serious misconduct
The SRA and other regulators frequently bring disciplinary proceedings based on "a lack of integrity." But what is integrity?
In September 2017 Majid Mahmood was fined £25,000 and was the subject of a deferred period of suspension as a result of wholly inappropriate posts on his Facebook Page
On the 21 September 2017 the SRA published a warning notice to solicitors, firms and anyone else it regulates who provide tax planning services
There is a procedure in the Solicitors Disciplinary Tribunal which allows the parties to apply for disciplinary proceedings to be concluded by a Statement of Agreed Facts and Outcome.
Michael Cremin was a man who presented himself to the outside world as a Lawyer and Advocate. He had a professional profile on the web site of Cotswold Barristers Chambers, along with his photograph. Cremin was neither.
This has long been a guiding principle. Solicitors are guardians and trustees of client money and are expected to exercise proper stewardship over it. Everything that we do with client money has to in accordance with the SRA Accounts Rules
In proceedings before the Solicitors Disciplinary Tribunal it has for very many years been a requirement that a solicitor should clearly know the case that he or she has to meet. In other words, there is an obligation on the SRA to properly
The need to deal carefully, thoroughly and openly with the SRA during investigations cannot be overstated. There is an explicit professional obligation to cooperate with the Authority and to provide it with whatever information it might need
Web site powered by CommsBox™