The UK Solicitors Disciplinary Tribunal (SDT) have dropped the standard of proof to be applied in professional disciplinary proceedings from the criminal standard of 'beyond a reasonable doubt' to the civil standard of 'balance of probabilities'. This change was part of a wider consultation of the Solicitors Regulatory Authority rules and procedures and is due to come into force on 25 November 2019.
In September, the Legal Services Board approved an application by the SDT to amend the standard of proof they adopted in professional misconduct inquires in respect of UK solicitors. The move by the SDT mirrors that of other professional disciplinary bodies in the UK who adopt the civil standard of proof and is seen as promoting greater protection of the interests of the public.
Standard of Proof
This change has lowered the level of certainty and degree of evidence required to establish proof in disciplinary proceedings of the SDT. The SDT adjudicate upon alleged breaches of rules and regulations by solicitors and the change will potentially make it easier to make findings against solicitors. The criminal standard requires proof beyond all reasonable doubt and is a high threshold to meet while the civil standard merely requires evidence that the occurrence of alleged conduct is more probable than not.
The Irish Position
In Ireland, once a statutory body makes findings following disciplinary procedures, the appropriate sanction to be imposed must be confirmed by the High Court. Most statutory bodies, including the Irish Solicitors Disciplinary Tribunal, apply the criminal standard of proof in disciplinary procedures, with few exceptions.
This can be traced back to O'Laoire v Medical Council where Mr Justice Keane outlined how these proceedings are not of the same nature as civil litigation, the Court could not proceed because of findings based on probabilities and the onus lies with the Medical Council to prove beyond reasonable doubt every relevant averment of fact not admitted and to establish beyond reasonable doubt that such facts, as so proved or admitted, constituted professional misconduct. In a more recent decision of Prendiville v Medical Council, Mr Justice Kelly highlighted that he was satisfied that the high standards of natural justice must apply, with strict adherence, as the allegations made were very serious and the whole professional standing of the applicants was at stake.
In the UK the SDT can impose sanctions without the requirement for Court confirmation. Until such a time as there is a considerable judicial diversion from established case law and/or a constitutional amendment, the standard of proof in many professional disciplinary proceedings will continue to be allied to the criminal standard of proof, being beyond a reasonable doubt.
O'Laoire v Medical Council, Unreported High Court 27 January 1995