In November 2016, we published an article considering the standard of proof in lawyers' disciplinary proceedings, in light of the High Court's obiter comments in the case of Solicitors Regulation Authority v Solicitors Disciplinary Tribunal  EWHC 2862 (Admin) ("the Arslan judgment"): see Standards of discipline: judicial comment on the standard of proof in SDT proceedings . In light of the comments made in the Arslan judgment, the Bar Standards Board ("BSB") has revisited the question of whether the BSB should also change its approach and apply the civil, rather than the criminal, standard of proof in disciplinary proceedings for professional misconduct brought against those regulated by the BSB, therefore bringing it in line with many other professional regulators. The change would mean that rather than having to be sure that allegations of professional misconduct had been proven (in other words beyond reasonable doubt), the Bar's independent Disciplinary Tribunals would only have to find the charges proven on the balance of probabilities (i.e to the civil standard of proof). The BSB has produced a consultation paper, to invite consumers of legal services, members of the Bar, and bodies and individuals involved in regulatory disciplinary systems to express their views on the issue. The consultation paper can be found here.
As highlighted in our article last year, the Solicitors Disciplinary Tribunal ("SDT") also applies the criminal standard of proof. However, the BSB's consultation paper suggests that both the BSB and the SDT might currently be out of sync with the majority of other professional regulators. This raises the question as to whether this might be the 'beginning of the end' of applying the criminal standard in lawyers' disciplinary proceedings, across the two branches of the profession. Indeed, the paper notes that the Legal Services Board ("LSB") endorses the view that the civil standard should be applied by all legal regulators; and on balance, the BSB now appears to agree that the civil standard is probably more appropriate, and more in keeping with their regulatory objective of "protecting and promoting the public interest" (pursuant to section 28 of the Legal Services Act 2007). Whilst one of the questions raised for consultation is as to whether the BSB should only change to the civil standard if and when the SDT does likewise, the paper does note that the BSB and SDT's positions are different. Whilst the BSB can stipulate the standard it will apply, as long as the LSB approves it, the SDT is reliant on case law for the appropriate authority on the applicable standard. For example, in the case of Campbell v Hamlet  UKPC 19, Lord Lane CJ held before the Privy Council 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". Therefore, the SDT may not wish to consider making the change, perhaps until further precedent considers the Arslan judgment, or until the BSB's consultation is concluded (to date there have been no indications that the SDT is considering any equivalent consultation in respect of its own approach).
The consultation will run until 21 July 2017; and the Board of the BSB intends to consider the responses to it and the way forward either later this year, or in early 2018. Therefore, a decision on this issue, even insofar as it concerns only the BSB's position, may still take some time to be confirmed. Whether the SDT follows suit in consulting on the point also remains to be seen, and we will be watching developments in this area closely.