The standard of proof in disciplinary proceedings- The balance of probabilities v reasonable doubt

The Bar Standards Board (“BSB”) has recently commenced a consultation into a review of the standard of proof applied in professional misconduct proceedings relating to barristers and other individuals or bodies regulated by the BSB.  Currently the standard of proof applied by the BSB’s Professional Conduct Committee for a case which cannot be resolved by the imposition of an administrative sanction is the criminal standard.

This is not the first time that the BSB has considered the issue.  In January 2011 the BSB suggested that it would be reviewing the standard of proof required for misconduct cases.  However, this review did not proceed at that time.  The BSB has now decided that it is required to consider the position further in order to comply with its regulatory objectives which include protecting and promoting the public interest.

Basically there are two standards of proof which may be applied to disciplinary proceedings.  One is the civil standard, whether something is found on a balance of probabilities.  The other is the criminal standard, finding something proved beyond reasonable doubt.  The former represents the position where something is more likely than not and the latter represents something that satisfies the court, jury or other person applying the standard “so as to be sure”.

Criminal courts invariably apply the criminal test irrespective of the seriousness of the crime but what happens when the courts or tribunals consider serious allegations such as fraud, dishonesty or allegations within regulatory proceedings?

The BSB notes in their consultation paper that a line of case law exists which exclusively arises from solicitors disciplinary proceedings.  In the case of solicitors, disciplinary proceedings have always been to the criminal standard of proof and in Re A Solicitor [1993] QB 69, Lord Lane stated that “where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, put in another way, proof beyond reasonable doubt.

In that case, the court referred to the Bar’s Code of Conduct which required the tribunal to apply the criminal standard of proof stating that “it would be anomalous if the two branches of the profession were to apply different standards in their disciplinary proceedings”.

In Aaron v the Law Society [2003] EWHC 2271 the Divisional Court referred to Re A Solicitor and concluded that where the allegations might result in suspension or striking off, the relevant standard of proof was the criminal one.

The approach in Re A Solicitor was again endorsed in Campbell v Hamlet [2005] UKPC 19, where the Privy Council stated “That the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession, their Lordships entertain no doubt. If and insofar as the Privy Council in Bhandari v Advocates Committee [1956] 1 WLR 1442 may be thought to have approved some lesser standard, then that decision ought no longer, nearly fifty years on, to be followed.”

Nevertheless, since 2005 there has been a gradual shift towards the application of the civil standard of proof to disciplinary proceedings. The Fitness to Practise Committee of the General Medical Council and the Discipline Committee of the Council for Licensed Conveyancers have both moved from the criminal standard to the civil standard. The former having done so in response to the Shipman enquiry where the use of the criminal standard was found to be a bar to effective regulation.

Whilst some bodies have moved towards a sliding scale depending on the severity of the allegations, in Re B (Children) [2008] UKHL 35, the House of Lords rejected this proposition.  In Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17 the Supreme Court found that the idea that “the more serious the allegation, the more cogent the evidence needed to prove it” was, whilst commonplace, a misinterpretation of previous authorities.   As of May 2017, the BSB’s consultation paper notes that the only other regulator to apply the criminal standard in its own decision making is the Royal College of Veterinary Surgeons. Even the Solicitors Regulation Authority (the SRA) in its own decisions applies the civil standard unlike the Solicitors Disciplinary Tribunal (the SDT) (which is not a regulator but a Statutory Tribunal) which applies the criminal standard of proof to disciplinary matters referred to it by the SRA.

The SRA applies the civil standard of proof within the SRA Disciplinary Procedure Rules 2011 (rule 7.7).  At the time of the change from the criminal to civil standard in early 2010, the SRA stated that the standard was adopted “in accordance with modern regulatory practice and the need to protect the public interest”.  The approach taken by the SRA was endorsed by the Legal Services Board after having been rejected by the Master of the Rolls and Lord Chancellor the year before.

It has long been the position of the SRA that the civil standard of proof should be applied to disciplinary proceedings and in Richards v the Law Society [2009] EWHC 2087 (Admin), the SRA invited the court to clarify the position; the court declined to do so.

The BSB’s consultation raises the real possibility of a change in the standard of proof and thereby a discrepancy between the standard in different branches of the legal profession.  Any such discrepancy may add pressure to change the standard in the SDT.

So what are the reasons to choose the civil standard?

Public protection

The underlying purpose of regulation is public protection and disciplinary proceedings should reflect that.  In Law Society v Waddingham [2012] EWHC 1519 (Admin) the court considered the criminal standard of proof and concluded that the solicitor had probably been dishonest, but that dishonesty was not proved to the criminal standard. It seems astonishing that a solicitor who is probably dishonest can remain in practice.  A balance has to be struck between the protection of the public and the solicitor’s practice and livelihood against the public protection. It is arguable that the public interest is the more powerful but the criminal standard actually weights the outcome in favour of the individual solicitor.  The risk to the public in requiring a criminal standard of proof has been most recently considered in the case of Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862 (Admin).  In this case Mr Justice Leggatt stated that “that the present situation in which the Tribunal, when acting as a primary fact-finder applies a different standard of proof from that which the SRA applies when carrying out that role is unsatisfactory and illogical”.  Mr Justice Leveson endorsed this (in obiter) and added he would “underline the need for a re-evaluation of the approach to disciplinary measures intended to protect the public”.

In the case of solicitors there is an unusual inconsistency with the SRA’s ability to exercise its statutory powers of intervention into a solicitor’s practice pursuant to Schedule 1 of the Solicitors Act 1974 where it has “reason to suspect dishonesty on the part of a solicitor”.  Here Parliament has considered that public protection justifies the lowest standard of proof imaginable – suspicion..  In Lord Bingham’s often quoted words in Bolton v Law Society [1993] EWCA Civ 32 solicitors should be “trusted to the ends of the earth”. He emphasised the related point that the reputation of the profession as a whole takes priority over the individual interests of any one lawyer.  It seems unlikely that the public interest in maintaining trust in barristers is any less than in relation to solicitors.

Consistency with other regulators

With the advent of Alternative Business Structures allowing non-lawyers to own and invest in law firms it will not simply be solicitors and barristers who are subject to regulatory or disciplinary proceedings in respect of the provision of legal services.  A consistent approach will need to be taken in respect of members of the legal profession and non-lawyers engaged in the provision of legal services through an ABS.  With many regulators approved by the Legal Services Board also being licensing authorities clinging to the criminal standard could lead to inconsistency in the regulation of reserved legal activities.

In addition, other regulators outside the legal profession have adopted the civil standard of proof for disciplinary proceedings which arguably have similar serious consequences to the member of that profession.  In R (Independent Police Complaints Commission) v. Assistant Commissioner Hayman [2008] EWHC 2191 (Admin) it was stated: “Of course in disciplinary proceedings the tribunal must look with the greatest care at accusations which potentially give rise to serious consequences. But in determining whether or not they occurred, it applies a single unvarying standard, the balance of probabilities. If satisfied it is more likely than not that the facts occurred, then it must find them proved and draw appropriate conclusions as to sanction.”

Whether the responses to the BSB consultation results in a change to the standard of proof applicable to barristers, there appears to be an appetite for change.  In 2012 the Law Commission reported on the healthcare professions and recommended the civil standard to protect the public.  In addition, the Legal Services Board has recommended the civil standard of proof for regulation of the legal profession in 2014 and a further report by HM Treasury (by the Insurance Fraud Taskforce) in January 2016 has recommended that the criminal burden of proof applied in the SDT is disproportionate.  The government subsequently accepted the recommendations and this may be a precursor to changes in the SDT.

Whilst a finding of misconduct may have very serious consequences for a lawyer not all allegations are equally serious. Findings and sanctions are published and the consequences for the lawyer should be in proportion. The risk of a mistake does not justify the certainty that applying the criminal standard will sometimes expose the public to lawyers who have probably mis-conducted themselves. It is, on one view, not better and in the public interest that ten guilty lawyers are exonerated to avoid the risk that one innocent lawyer is mistakenly convicted. *

By Michael Colledge, Senior Associate at Russell-Cooke LLP and a contributor to The Law of Legal Services

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