The Solicitors Regulation Authority has to prove allegations to the criminal standard when prosecuting an application before the Solicitors Disciplinary Tribunal. It has been pressing hard to change this to the lower civil standard – and many commentators suggest this is only a matter of time.
The regulator has, however, fought shy of testing the standard of proof in the higher courts. It has therefore embarked on an alternative strategy of persuasion.
For example, the SRA was a notable stakeholder contributor to the Insurance Fraud Taskforce, which reported in early 2016. The report highlighted concerns that the regulator was not doing enough to tackle dishonest solicitors.
In its defence, the SRA submitted that its ability to enforce standards of professional conduct, in the public interest, was hampered by use of the criminal standard. The answer, said the regulator, is to lower the bar.
It is worrying that these representations will now go before legislators in a report, rather than the courts. The taskforce report does not contain any examples to support the SRA’s sweeping assertions.
My own experience tells me that the problem, if it truly exists, is tiny and is unlikely to be a product of the burden of proof. The real answer will be found in good quality forensic investigation work followed by properly formulated and presented prosecutions.
The SDT will find allegations of misconduct not proved when there is either a deficiency in the prosecution, or where it prefers to accept the evidence or submissions of a solicitor given in their defence. Where clear forensic evidence is obtained and presented, there is no problem with the existing burden of proof.
In any case, blaming the standard of proof in the absence of analysis is not the answer. The SRA has deliberately moved away from an external panel of prosecutors in private practice and it is important that its in-house prosecutions should continue to meet the higher standard of proof, which has long been seen as a safeguard.
Another argument deployed is that the SDT is now in a minority of regulatory tribunals which apply the criminal standard.
But the SDT is a significant regulatory tribunal and is widely respected as a fact-finding court. Compared with the SDT, many other regulatory tribunals are quite small and so the comparison is not a good one.
When it does find dishonesty, the SDT strikes from the roll almost without exception. Other tribunals do not. It is right that before an inevitable strike-off the tribunal should be sure of dishonesty to a high standard. My concern is that lowering the standard of proof will lower the standards of evidence-gathering and prosecutions.
The SRA also argues that it is illogical for it to make certain regulatory decisions on a balance of probabilities and that the SDT then applies the criminal standard when reviewing these. The SRA drew support from remarks in SRA v SDT  EWHC 2862 (Admin). In that case, involving a Mr Arslan, the SDT was a reviewing court and not a primary finder of fact. By far the majority of the SDT’s decisions are made when it is a primary fact-finder.
Arslan is not, therefore, a good argument for wholesale change and in deploying it the SRA fails to draw a distinction between a court of review and one of primary fact finding.
I am aware of very few lawyers who actually do this work who support a lowering of the standard. Many highlight the terminal effect a finding of dishonesty has on a career and that it is right a regulator should be able to clearly prove dishonesty.
In over 20 years as a prosecutor and defender in that jurisdiction I cannot say the higher standard has hampered a prosecution. It should not be beyond the SRA to obtain appropriate and compelling evidence and present prosecutions convincingly and properly.
David Barton is a solicitor-advocate