LEGAL ANALYSIS: Standard of proof applied to legal professionals in regulatory proceedings 'on the brink of change'

The standard of proof applied to legal professionals in the UK by their regulatory bodies is inconsistent and has been for some time now...

The standard of proof applied to legal professionals in the UK by their regulatory bodies is inconsistent and has been for some time now. This appears however to be on the brink of change...

Regulatory Purpose/Function

When considering what standard of proof should be applied in regulatory proceedings, it is important to appreciate that the aim of regulatory proceedings is to protect the public interest, not to punish the offending professional.

The reputation of a profession as a whole must take priority over each individual professional’s interest. In Bolton v Law Society it was held that one of the purposes of disciplinary sanction was “to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth”[1].

The current standard of proof applied to disciplinary proceedings before the Solicitors Disciplinary Tribunal (“SDT”) and the Bar Tribunals and Adjudication Service (BTAS) is the criminal standard of proof, but it is not always possible to reconcile some of the decisions reached as result of using the criminal standard of proof with the aims of those regulatory bodies. For example in the Law Society v Waddingham it was held that two solicitors probably did act dishonestly [but the court was] not able to be sure that either [solicitor] acted dishonestly”[2]. The two solicitors were therefore allowed to remain in practice, which surely can not be in the public interest. The Bar Standards Board (“BSB”) recognised this issue in its recent consultation: “…it is not necessarily in the public interest for barristers to be able to avoid a disciplinary sanction when it is more likely than not that they are guilty of professional misconduct but a Tribunal can not be “sure” of this”[3].

It is this conflict which caused regulatory bodies to question in recent years whether the criminal standard of proof was in fact the appropriate standard of proof to be applied in regulatory proceedings, and which lead to a gradual shift from the criminal standard of proof (“the criminal standard”) to the civil standard of proof (“the civil standard”). It is this gradual shift combined with the Legal Services Act 2007 and a reluctance amongst professionals to accept the civil standard as adequately protecting their interests that has resulted in inconsistency in the regulation of the legal profession.

However this inconsistency might soon be a thing of the past. The BSB received 101 responses to its consultation: ‘Review of the standard of proof applied in professional misconduct proceedings’. Despite only 12 respondents being in favour of adopting the civil standard, the BSB decided on Thursday evening last the standard of proof applied in disciplinary hearings before the BTAS should change from the criminal standard to the civil standard. The other 89 respondents, made up predominantly of practising or qualified barristers were opposed to changing from the criminal standard to the civil standard. The response highlights the reluctance amongst professionals to accept the civil standard as adequately protecting their interests.[4]

Background

The landscape in relation to the standard of proof has been fluid. In Bhandari v Advocates Committee[5] the court was interpreted as having approved a lower standard of proof to the criminal standard.

In more recent decades the courts declared the criminal standard to be the correct standard of proof to be applied in hearings before the SDT. In Re A Solicitor it was held 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”.[6] The court also held that “it would be anomalous if the two branches of the profession were to apply different standards in their disciplinary proceedings”[7], as is now the case.

That decision was endorsed in Aaron v The Law Society[8]. In Campbell v Hamlet the Privy Council went so far as to say “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 may be thought to have approved some lesser standard, then that decision ought no longer, nearly fifty years on, to be followed”[9].

Recent caselaw suggests that the court no longer considers the criminal standard to be the correct standard of proof to be applied in disciplinary proceedings before the SDT.

Other Regulators

By the time of the decision in Campbell v Hamlet[10] the regulatory landscape was beginning to change. On 9 December 2004 the Fifth Shipman Report concluded that: “The GMC should reopen its debate about the standard of proof to be applied by FTP panels. The civil standard of proof is appropriate in a protective jurisdiction…”[11]

In 2008 the GMC explicitly adopted the civil standard for the purpose of disciplinary hearings before Fitness to Practice panels[12]. Similarly in 2008 the Home Office also adopted the civil standard for the purpose of disciplinary proceedings.[13] It is noteworthy that the GMC and the Home Office may have been more reluctant to adopt the civil standard had they been aware of the decisions in Re B[14] and R (Independent Police Complaints Commission) v Assistant Commissioner Hayman[15] before doing so, which held that the civil standard was “a single unvarying standard”[16].

Legal Services Act 2007

One of the main reasons behind the introduction of outcome focussed regulation by legal regulators was the introduction of LDPs and ABSs by the Legal Services Act 2007. For the first time regulators needed to ensure that all those involved in the provision of legal services were subject to regulation, and not just solicitors and barristers.

In July 2009 the SRA invited the court in Richards v The Law Society[17] to clarify the position regarding the standard of proof. Unfortunately the court declined to do so as it had no bearing on the outcome of the case.

In early 2010 the SRA opted to replace the criminal standard with the civil standard on the recommendation that the standard of proof should be the civil standard “in accordance with modern regulatory practice and the need to protect the public interest”[18]. “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.”[19]

Licensed conveyancers and legal executives also opted to apply for the civil standard in disciplinary proceedings. It was therefore the Legal Services Act 2007 (“LSA 2007”) that brought about inconsistency in the regulation of legal professionals.

SRA, SDT and BSB

Although the Law Society is the approved regulator for solicitors and other authorised individuals/bodies/entities, it delegates its responsibility to the SRA. Rule 7.7 of the SRA Disciplinary Procedure Rules 2011 states that “the standard of proof shall be the civil standard”.

“…The SDT… [is not an approved regulator; it] operates independently of the SRA and is not subject to the SRA’s regulatory arrangements.”[20] The SDT derives its powers from section 46 of the Solicitors’ Act 1974 and operates pursuant to the Solicitors (Disciplinary Proceedings) Rules [SI2007/3588] (“the Rules”). The Rules do not specify the standard of proof to be applied by the SDT and the SDT does not have the power to amend the Rules. Any amendment must be by way primary or secondary legislation or by way of a precedent-setting judicial decision. “The SDT continues to apply the criminal standard when determining issues of professional misconduct and considers itself bound by case law to do so…”[21]

The BSB is responsible for regulating barristers and other authorised individuals/bodies/entities. BTAS is responsible for organising and administering independent Disciplinary Tribunals. Regulation E143[22] of The Disciplinary Tribunal Regulations 2014 provides that “The Tribunal must apply the criminal standard of proof when deciding charges of professional misconduct and in deciding whether the disqualification condition has been established”[23].

“The BSB as an “Approved Regulator” under the Legal Services Act 2007, is able to change the standard of proof applied without primary or secondary legislation or a precedent-setting judicial decision. Our position is different to that of the SDT, in that the SDT is not subject to any specific written requirement to apply the criminal standard of proof and is therefore reliant on case law for its source of the authority as to the appropriate standard of proof to apply. In contrast, the Bar has always stipulated in its rules the standard of proof applicable to professional misconduct and is free to amend the relevant regulation (E143 of the Disciplinary Tribunal Regulation) as long as the LSB approves the change.”[24]

Recent Developments

In March 2011 the Legal Services Consumer Panel was reported as saying “The underlying purpose of disciplinary proceedings is public protection, which could be frustrated if a licensing authority is unable to take action, or is unsuccessful in doing so, because the evidentiary burden is disproportionate”.[25]

In 2011 a BSB Working Group was asked to consider the standard of proof, but was divided as to what to recommend and so the issue was left open to the BSB. The BSB favoured the civil standard, but was reluctant to make the change unless the SDT was minded to do so also.[26]

In March 2014 the Legal Services Board recommended the consistent use of the civil standard for regulation of the legal profession.[27] The Law Commission’s ‘Regulation of Health Care Professionals/Regulation of Social Care Professionals in England’, (LCCP 202), Para 9.65 cited the recommendation as having been based on “strong public protection arguments”.[28]

In April 2014 The Law Commission’s Report: ‘Regulation of Health Care Professionals; Regulation of Social Care Professionals in England’ stated “It is not acceptable that a registrant who is more likely than not to be a danger to the public should be allowed to continue practising because a panel is not certain that he or she is such a danger”.[29]  Proposals put forward by the Law Commission to impose the civil standard via legislation were not introduced.

In January 2016 HM Treasury suggested it was disproportionate for the SDT to apply the criminal standard. The government accepted the recommendations.[30]

The most significant development is perhaps the decision in the case of Solicitors Regulation Authority v Solicitors Disciplinary Tribunal[31]. It is this that has persuaded the BSB to reconsider this issue. Although the court again declined an invitation to express a concluded view in relation to the appropriate standard of proof, Mr Justice Leggatt stated “For my part, I agree with [counsel] 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. I also see considerable force in the point that the climate and approach to professional regulation and discipline have changed since Re A Solicitor was decided. Persuasive as [counsel’s] submissions were, however, I would decline the invitation to express a concluded view on the question [of the standard of proof] in the present case. To do so would require us to decide whether a previous decision of this court and a decision of the Privy Council should not now be followed. Those authorities do seem to me ripe for reconsideration. But not in a case where the Tribunal was not undertaking a primary fact-finding role so that the question of what standard of proof is appropriate in that situation does not arise. In these circumstances, any views that we express on the point could only amount to obiter dicta and would have no binding force....”.[32]

Mr Justice Leveson agreed with Mr Justice Leggatt stating “I agree with the cogent analysis of this case in all its aspects. In that regard, 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.”

Mr Paul Phillip, Chief Executive of the SRA (and Director of Standards and Fitness to Practice at the GMC when the change in the standard of proof was implemented) described this decision as an “important judgment” and suggested that it was “clearly wrong that the SDT applies a different standard to the SRA”.[33] The Legal Services Board Report: ‘Regulatory Standards 2015/2016’ also supports the view that the civil standard of proof is the more appropriate for use in disciplinary hearings before the SDT than the current criminal standard of proof.[34]

The BSB subsequently indicated that the time had come to take a firm decision either way as to the appropriate standard of proof to apply to professional misconduct proceedings. The BSB’s consultation: ‘Review of the standard of proof applied in professional misconduct proceedings’ followed and on Thursday evening last the BSB decided that standard of proof applied in disciplinary hearings before the BTAS should change from the criminal standard to the civil standard. The change is to be introduced by March 2019.[35]

Conclusion

Given the overwhelming support for the use of the civil standard of proof in regulatory matters, that the civil standard of proof best protects the public interest, the recent opinions expressed by Mr Justice Leggatt and Mr Justice Leveson, and the BSB’s decision to change the standard of proof from the criminal standard to the civil standard, the SDT now finds itself in a rather difficult and awkward position, it being the only regulatory body which continues to apply the criminal standard.

The SDT is to consult on the standard of proof to be applied in disciplinary hearings before the SDT. The difficulty is (as noted above) “…The SDT… [is not an approved regulator; it] operates independently of the SRA and is not subject to the SRA’s regulatory arrangements.”[36] The SDT derives its powers from section 46 of the Solicitors’ Act 1974 and operates pursuant to the Solicitors (Disciplinary Proceedings) Rules [SI2007/3588] (“the Rules”). The Rules do not specify the standard of proof to be applied by the SDT and the SDT does not have the power to amend the Rules. Any amendment must be by way primary or secondary legislation or by way of a precedent-setting judicial decision.[37]

Our prediction is that it is only a matter of time until the SDT reaches a decision that the civil standard is the most appropriate burden of proof and should be applied in disciplinary hearings before the SDT. The more interesting question is what happens next? Whilst an amendment might be brought about by way of primary or secondary legislation, the SDT might be forced to seek out an appropriate case to bring before the courts to bring about the precedent-setting judicial decision required to change the burden of proof. Only time will tell!

Barbara Flannery is a Solicitor at national law firm Weightmans LLP

[1] [1994] 1 W.L.R. 512, *518

[2] [2012] EWHC 1519 (Admin), paragraph 60

[3] Bar Standards Board, May 2017, Bar Standards Board Consultation: Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 9, paragraph 23,

[4] Max Walters, 23 November 2017, Bar to lower standard of proof in disciplinary cases, The Law Society Gazette, https://www.lawgazette.co.uk/law/bar-to-lower-standard-of-proof-in-disciplinary-cases/5063848.article

[5] [1956] 1 WLR 1442

[6] [1993] QB 69, *81

[7] [1993] QB 69, *82

[8] [2003] EWHC 2271 (Admin), paragraph 15

[9] [2005] UKPC 19, paragraph 16

[10] [2005] UKPC 19

[11] 9 December 2004, Fifth Shipman Report, Command Paper Cm 6394, Handling Complaints and Concerns, Standard of Proof, http://webarchive.nationalarchives.gov.uk/20090808163837/http://www.the-shipman-inquiry.org.uk/5r_page.asp, Recommendations, The General Medical Council, Standard of Proof, page 61, paragraph 81

[12] General Medical Council (Fitness to Practise) (Amendment in Relation to Standard of Proof) Rules SI 2008/1256

[13] Police (Conduct) Regulations (SI2008/2864)

[14] [2008] UKHL 35

[15] [2008] EWHC 2191 (Admin)

[16] [2008] EWHC 2191 (Admin), paragraph 20

[17] [2009] EWHC 2087 (Admin)

[18] Solicitors Regulatory Authority, 15 January 2010, Solicitors Regulatory Authority, SRA Board, Legal Services Act 2007 – SRA (Disciplinary Procedure) Rules Executive Summary, http://www.legalservicesboard.org.uk/what_we_do/regulation/pdf/sra_disciplinary_procedure_application_annex_2.pdf, Page 1, Recommendation 1.

[19] Michael Colledge, 29 August 2017, The standard of proof in disciplinary proceedings – The balance of probabilities v reasonable doubt, The Barrister, http://www.barristermagazine.com/the-standard-of-proof-in-disciplinary-proceedings-the-balance-of-probabilities-v-reasonable-doubt/

[20] Bar Standards Board, May 2017, Bar Standards Board Consultation Paper, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 5, paragraph 9

[21] Bar Standards Board, May 2017, Bar Standards Board Consultation Paper, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 5, paragraph 9

[22] Bar Standards Board, November 2017, The Bar Standards Board Handbook, Third Edition updated November 2017, https://www.barstandardsboard.org.uk/media/1901336/bsb_handbook_version_3.1_november_2017.pdf, Part 5, Section B

[23] Bar Standards Board, November 2017, The Bar Standards Board Handbook, Third Edition updated November 2017, https://www.barstandardsboard.org.uk/media/1901336/bsb_handbook_version_3.1_november_2017.pdf, Part 5, Section B, rE143

[24] Bar Standards Board, May 2017, Bar Standards Board Consultation Paper, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 9, paragraph 21

[25] Legal Futures, 21 March 2011, Criminal standard of proof in disciplinary matters “could expose clients of ABSs”, https://www.legalfutures.co.uk/regulation/solicitors/criminal-standard-of-proof-in-disciplinary-matters-could-expose-clients-of-abss

[26] Bar Standards Board, May 2017, Bar Standards Board Consultation Paper, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 6, paragraph 11

[27] Legal Services Board, March 2014, Legal Services Board, Regulatory sanctions and appeals processes, An assessment of current arrangements, http://www.legalservicesboard.org.uk/projects/thematic_review/pdf/20140306_LSB_Assessment_Of_Current_Arrangements_For_Sanctions_And_Appeals.pdf, page 4, paragraph 1.3

[28] Bar Standards Board, May 2017, Bar Standards Board Consultation Paper, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 6, paragraph 10

[29] The Law Commission, The Scottish Law Commission and Northern Ireland Law Commission, April 2014, The Law Commission’s Report: ‘Regulation of Health Care Professionals; Regulation of Social Care Professionals in England’, https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc345_regulation_of_healthcare_professionals.pdf, page 164, paragraph 9.61

[30] Michael Colledge, 29 August 2017, The standard of proof in disciplinary proceedings – The balance of probabilities v reasonable doubt, The Barrister, http://www.barristermagazine.com/the-standard-of-proof-in-disciplinary-proceedings-the-balance-of-probabilities-v-reasonable-doubt/

[31] [2016] EWHC 2862 (Admin)

[32] [2016] EWHC 2862 (Admin), paragraph 49

[33] John Hyde, 11 November 2016, Rethink SDT standard of proof – Leveson, Law Society Gazette, https://www.lawgazette.co.uk/law/rethink-sdt-standard-of-proof--leveson/5058766.article

[34] The Legal Services Board, May 2016, The Legal Services Board Report: ‘Regulatory Standards 2015/2016’, http://www.legalservicesboard.org.uk/projects/developing_regulatory_standards/pdf/1605_THEMATIC_REPORT.pdf, page 29, paragraph 68

[35] Max Walters, 23 November 2017, Bar to lower standard of proof in disciplinary cases, The Law Society Gazette, https://www.lawgazette.co.uk/law/bar-to-lower-standard-of-proof-in-disciplinary-cases/5063848.article

[36] Bar Standards Board, May 2017, Bar Standards Board Consultation Paper, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 5, paragraph 9

[37] Bar Standards Board, May 2017, Bar Standards Board Consultation Paper, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf, page 5, paragraph 9

 

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