In a current consultation, the Solicitors Disciplinary Tribunal (SDT) is looking at the standard of proof in its proceedings.
The difficult questions
Should a solicitor be struck off for dishonesty if the SDT is not sure whether he has been dishonest? Is it in the public interest for a solicitor to practise if it is more likely than not that she has been dishonest, but the SDT cannot be sure of this?
It is tempting to say ‘No’ to both of those questions. But you cannot have it both ways. That has been highlighted by the current consultation on the SDT rules.
The SDT consultation
The SDT has the statutory power to make rules about its own procedures under the Solicitors Act 1974, s.46. At present the SDT applies the criminal standard of proof. A solicitor will not be found guilty of dishonesty, or in breach of any professional rules, unless the SDT is ‘sure’ of the breach. However, there has been mounting pressure over the past 10 years to change the standard of proof to the civil standard, so a solicitor is guilty if a breach is ‘more likely than not’.
The matter is coming to a head because the SDT is updating its rules, and needs to decide whether the criminal or civil standard should apply to its proceedings.
A consultation paper was issued on 16 July 2018 inviting members of the profession to make representations on the standard of proof (and, if they wish, other issues on the rules) by 8 October 2018.
English law on the standard of proof
In 1956 in Bhandari v Advocates Committee  1 WLR 1442 the Privy Council considered the standard of proof during an appeal from the Court of Appeal of East Africa in a case of a solicitor who had been found guilty of professional misconduct. The Privy Council said the standard of proof should be higher than the civil standard for the following reason:
‘In every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities’.
That left the standard undefined, but somewhere above the civil standard. In Re a Solicitor  QB 69, the Divisional Court had to decide whether the criminal standard of proof should apply to a solicitor facing an allegation of perjury. Lord Lane said that the criminal standard should apply to all cases where ‘what is alleged is tantamount to a criminal offence’.
Twelve years later, in Campbell v Hamlett  UKPC 19, the issue was considered again when the Privy Council heard an appeal by a Trinidadian lawyer who had been accused of dishonestly retaining the purchase monies for a property. Lord Brown went further than Re a Solicitor and said that the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession. That was confirmed by the House of Lords in Re (D) v Life Sentence Review Commissioners (Northern Ireland)  UKHL 33, by Lord Carswell, who said on an obiter basis that the criminal standard of proof is required in disciplinary proceedings.
In Richards v Law Society  EWHC 2087 Sir Anthony May said, without reference to the then recent decision in Re D, that counsel for the Solicitors Regulation Authority (SRA) came close to accepting that the High Court is bound by the authorities which apply the criminal standard and, insofar as the authorities might arguably leave some room for manoeuvre, that is better debated and decided in a case where the standard of proof makes a difference, and probably in the House of Lords.
The standard of proof was mentioned again in passing in 2016 in Arslan v SRA  EWHC 2862. Arslan is a case involving an appeal by Mr Arslan against an internal decision of an SRA adjudicator. On internal disciplinary proceedings conducted by the SRA, adjudicators apply the civil standard.
Mr Arslan’s appeal raised the question whether the SDT should, when exercising its appellate function relating to SRA adjudication decisions, apply the same standard of proof used by the SRA in its original decision (being the civil standard), or whether it should apply the criminal standard in line with its normal practice. It did not directly address the question whether the criminal standard should apply to first-instant decisions relating to solicitors in the SDT. The SRA’s counsel asked the Divisional Court to consider that issue. Leggatt J declined, but stated that the authorities ‘do seem to me ripe for reconsideration’.
Sir Brian Leveson underlined that point by stating: ‘I emphasise the observations of Leggatt J in relation to the standard of proof in these cases and underline the need for a re-evaluation of the approach to disciplinary measures intended to protect the public. Notwithstanding [counsel’s] encouragement to do so, to go further than the confines of this case would not have been appropriate.’
The shifting sands of regulation
The judicial encouragement in the High Court in Arslan to reconsider the standard of proof reflects the changing stance of regulators over the past 10 years. In 2009, the Shipman Enquiry encouraged the medical profession to consider whether the criminal standard continued to be appropriate, and by 2010 all the medical regulators had moved to the civil standard. In 2011 the SRA applied the civil standard to its new internal disciplinary rules. In 2014 the Legal Services Board, as the oversight regulator for the legal profession, recommended the adoption of the civil standard by all of the legal regulators. Next year the Bar Standards Board will be applying the civil standard to all allegations of misconduct with effect from 1 April 2019.
Leaving aside the Bar Standards Board and the SDT, the only regulator now applying the criminal standard is the Royal College of Veterinary Surgeons.
The Tribunal’s impetus for change
The Tribunal’s consultation paper sets out four points which are considered to be relevant matters when deciding whether the standard of proof in the Tribunal should change. The four points are:
- ‘The LSB considers that the application of the civil standard is more appropriate for protecting the public.’
- ‘The Tribunal recognises that it is not necessarily in the public interest for solicitors to be able to avoid a disciplinary sanction when it is more likely than not that they are guilty of professional misconduct but the Tribunal cannot be “sure” of this. The Tribunal recognise the argument that this position may be perceived by the public as working in the interests of the profession and not in the interests of the public or consumers.’
- ‘Almost every other professional regulator, except for Veterinary Surgeons, now applies or will apply the civil standard of proof to professional misconduct allegations. It is argued by some that this leaves the Tribunal out of step with the large majority of the other professional regulators.’
- ‘[This also] means that solicitors could be accorded what might appear to be preferential treatment compared with other professions.’
In short, the consultation paper places great emphasis on the need to protect the public interest at the expense of the interests of the solicitor facing prosecution. The emphasis suggests that the standard of proof is likely to be reduced to the civil standard and that solicitors facing allegations of dishonesty are likely to be judged on the civil standard.
The European Convention on Human Rights
Two cases on disciplinary proceedings that reached the European Court of Human Rights (ECtHR) suggest that a solicitor may be entitled to the criminal standard under the Article 6 right to a fair trial.
In Brown v the UK (38644/97) the ECtHR had to consider whether a complaint made by an English solicitor relating to Tribunal proceedings should be treated as a civil or criminal complaint.
The ECtHR stated that the court should adopt a threefold test by having regard to:
- the classification in domestic law;
- the nature of the offence itself; and
- the nature and severity of the sentence.
In the circumstances of the case, the ECtHR decided that the solicitor’s complaint was a civil complaint. The charges were classified under domestic law as disciplinary offences and were examined in a Tribunal without any involvement by the police.
The offences were of a disciplinary nature which applied only to persons of a specific professional group rather than the general public. The severity of the penalty, which was a £10,000 fine, was not of itself such as to render the charges criminal in nature.
In Albert and Le Compte v Belgium (7299/75 and 7496/76), the ECtHR again decided that disciplinary proceedings against two Belgian doctors could not be characterised as criminal, but recognised the hybrid nature of disciplinary proceedings. The ECtHR said that it may not hold good for all disciplinary cases to not be characterised as ‘criminal’, and, on the facts of the case, the court decided that sub-paras. (a), (b) and (d) of Article 6 (which relate to criminal proceedings) should be taken into account in deciding whether the disciplinary proceedings constituted a fair trial.
Both of those ECtHR cases suggest that a professional conduct complaint should not be treated as a civil complaint in circumstances where the charge is so serious that a solicitor is at risk of being struck off. The ECtHR case law is compatible with the long line of English decisions stretching from the Privy Council decision of 1956 to the High Court decision of 2009. Together they call into question the stance taken by regulators in England over the past 10 years.
Participating in the consultation The Tribunal consultation paper can be found on the SDT website: www.solicitorstribunal.org.uk
Responses to the consultation can be submitted by email to: firstname.lastname@example.org, and need to be received by the SDT by 8 October 2018.