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.


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