SDT Consultation on the standard of proof

18th July 2018 Business Crime

The Solicitors Disciplinary Tribunal (SDT) has confirmed the launch of the long awaited consultation on replacing the current criminal standard of proof in Solicitors Regulation Authority (SRA) proceedings.

The SRA believe the bar is set too high and that the civil standard of proof should apply wherein the tribunal need only be satisfied of a practitioner's guilt on the balance of probabilities. Opponents view the criminal standard as necessary because of the potential career ending consequences of conviction. Perhaps a change will lead to more agreement between the SRA and the respondent parties, thereby avoiding expensive SDT proceedings. However, there is a fine line between a properly reasoned outcome and an admission based upon the fear of a lower standard of proof at a costly trial.

The consultation will run from 16 July 2018 to 8 October 2018. The proposed draft rules update the current Solicitors (Disciplinary Proceedings) Rules 2007. The Tribunal is seeking views on whether the other provisions in the draft rules are fit for purpose. Consultees are asked to respond to the following questions:-

(a) Do you consider, in principle, that the Tribunal should change its rules to allow for the civil standard to be applied to cases which it hears
(b) Do you consider in principle that the Tribunal should change its rules to make provision about agreed outcome proposals
(c) Do you consider that the other provisions in the draft rules are fit for purpose?
(d) If the answer to question (c) is no, please explain why.
(e) Do you have any detailed comments on the drafting of the proposed rules?
(f) Do you consider that any of the draft rules could result in any adverse impacts for any of those with protected characteristics under the Equality Act?

The use of the criminal standard of proof in relation to professional misconduct allegations was relatively common among comparable professions prior to 2008. However, the Shipman inquiry in 2008/9 encouraged the medical professions to consider whether the use of the criminal standard remained appropriate in the public interest. Legislation was proposed, but all the medical professions that had previously applied the criminal standard voluntarily moved to the civil standard by 2010. Of the few remaining professions applying the criminal standard, the Bar Standards Board will apply the civil standard to allegations of misconduct arising from 1 April 2019.

The Solicitors Disciplinary Tribunal adjudicates upon alleged breaches of rules or the Solicitors Code of Conduct, which are designed to protect the public and maintain public confidence in the legal profession, by defining standards for honesty, probity, trustworthiness, independence and integrity. The Tribunal adjudicates upon the alleged misconduct of recognised bodies, registered foreign lawyers and persons employed by solicitors. It also hears applications for restoration to the Solicitors' Roll.

Evan Wright is a partner in the Corporate and Professional Regulation department. He defends and advises corporations and directors in matters concerning the FCA, HMRC and other regulatory authorities. Feel free to contact Evan if you have questions on the matters raised above or if you / your company requires advice on regulatory matters.

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Evan Wright is a Partner located in Manchester in our Business Crime & Regulation department

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