SRA wants lower standard of proof for tribunal prosecutions

Topics: Regulation and compliance

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A lower burden of proof for the Solicitors Disciplinary Tribunal has come another step closer to reality after backing from a government-sponsored report.

The Insurance Fraud Taskforce was published this week with a range of proposals for reducing fraudulent or exaggerated compensation claims.

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The report recommended that the SRA become tougher in its pursuit of ‘enablers’ in the legal profession and have fining powers substantially above the current £2,000 limit.

The report also considers that the criminal standard of proof currently required to convict a solicitor at the tribunal could be lowered.

The taskforce suggested that this burden of proof is ‘disproportionate’, and said it was not acceptable that a professional who is a danger to the public should be able to continue practising.

The Treasury and Ministry of Justice, which are both involved in a review of legal services regulation, have both welcomed the report, and it seems likely the burden of proof will come under scrutiny by ministers in the coming months.

The SRA has responded positively to the proposals, and this will also feed into its review of the personal injury market planned for this year.

Chief executive Paul Philip said: ‘The taskforce called on the SDT to adopt the civil standard of proof and we agree that has to be the right way forward.

‘Alongside that, reviewing our fining powers would make the system more efficient and effective.’

Other recommendations from the taskforce include that insurers should provide the SRA with evidence regarding claimant law firms suspected of insurance fraud and that the SRA should investigate this and act robustly.

The Insurance Fraud Bureau should act as a single point of contact between insurers and the SRA.

Readers' comments (22)

  • The SRA has wanted the civil standard to apply to the SDT for a long time. As Donald McCue commented:

    "One would have thought that with a 97% conviction rate there is no pressing need to make conviction even easier."

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  • Nice to see the SRA getting cosy with the insurance industry and alienating itself even further from those it regulates. No wonder some alternative set ups are opting for the Bar Standards Board.

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  • Might it be possible for there to be two categories, balance of probabilities and beyond a reasonable doubt? For the offences which the SRA can fine up to £2,000, currently at least, balance of probabilities would do, but for those which it deems more serious and have to go to the SDT still requiring 'beyond a reasonable doubt'

    And could there be plea bargaining, in return for a 'guilty' plea, if the case is deemed appropriate, the matter is dealt with by the SRA with its limited powers?

    And please, PLEASE, can we have a detailed explanation as to how costs in these cases are calculated. Some of them exceed what I charged in a lit of my cases which went to a full trial.

    And, finally, could those advocates who regularly appear before the SRA/SDT for the 'prosecution' for these fantastic fees be required to represent free of charge defendants on the cab rank rule basis. I understand that at present they are prohibited, yes PROHIBITED, from appearing for the defence. Can you believe that? And what justification can there possibly be for that?

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  • The Law Society must fight this tooth and nail.

    The odds are already significantly loaded against solicitors.

    Because of the position with costs, there is every incentive to accept a regulatory settlement, if you're lucky enough to be offered one, which completely comprises your position, if you know you are innocent.

    To take matters to the SDT is a massive gamble.

    Speaking as someone who appeared before the SDT and was completely exonerated and being one of the rare few to recover costs, the existing standard must remain, simply because of the sheer incompetence of the SRA that is often highlighted on this forum and that thankfully, is exposed by the SDT.

    The SRA are not transparent, case officers who bring unmeritorious cases ore the SDT are never named, there is no published 'outcome' on any consequence to them and essentially, I would have no faith at all that the SRA would not simply abuse its position.

    And always remember, whilst you think you and your practice are bullet proof, there but for the grace of god....

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  • For goodness sake can people spend a little time reading the law of evidence: the civil standard has had a degree of flexibility within it for as long as I can recall: the more grave the allegation the higher the evidential standard required to establish the same.

    It is as unreasonable to apply the criminal standard to certain allegations of misconduct (i.e. calling one's opponent a 'plonker') as it is to apply the lowest end of the civil standard to the most serious allegations.

    As note above, the 97% "conviction" rate indicates that there is no basis for suggesting that large numbers are slipping through the net for want of the proper evidential tests being applied.

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  • Exactly above comment.

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  • Interesting to see the 'thumbs down'

    I think it is not unreasonable to suggest that removing the need for the solicitor's profession to read the law of evidence (if indeed there was ever such an obligation) and the resultant ignorance is behind these votes.

    (I was called to the Bar)

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  • @Anonymous 20 January 2016 12:38 pm:

    They only ever gave potted versions in the civil Litigation and Criminal Litigation appears. Now its probably even worse with the non-failable 'professional' 'exams'.

    There is no substitute for reading Phipson I agree.

    Mind you I had to laugh because I was before a DJ once who didn't know what it was let alone that it covered both Civil and Criminal Evidence. Still evidence, what evidence? May be a role there for them at the SRA methinks ............

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  • It would be simpler to have one standard that everyone can understand: if the solicitors cannot prove innocence beyond reasonable doubt s/he should be struck off.

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  • Anonymous 20 January 2016 10:26 am looks and sound like me former Mummy, are you?

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