If SDT wants to use civil standard of proof it should relinquish the punitive elements of its philosophy.
What will solicitors and veterinary surgeons have in common on 1 April 2019? (Well spotted if you noticed that this date falls a couple of days after Brexit, but unfortunately that is a red herring). Stumped? Well, as things stand, at that point they will be the only professionals whose regulators apply a criminal rather than civil standard of proof in disciplinary proceedings.
Barristers are also in the criminal club for the time being, but the Bar Standards Board has recently announced its intention to shift to the civil standard from 31 March 2019. That would leave solicitors and vets in a somewhat unusual (and enviable) position compared to other professionals.
There is, however, change looming for solicitors too. As many will know, the Solicitors Disciplinary Tribunal is presently consulting on proposals to move to the civil standard. The consultation closes on 8 October, so there is still time to respond if you have not done so already.
In many ways, this has not come as a surprise. Although other professional regulators such as the General Medical Council formerly used the criminal standard, since around 2010 most have used the civil standard. The LSB expressed a preference for the civil standard in 2014 on the basis that this offered a higher level of public protection, although it pointedly left decisions concerning a shift to the frontline regulators. In 2016, moreover, Lord Leveson called for the standard of proof to be re-evaluated.
Last year, the Law Society undertook a pre-emptive survey of solicitors in anticipation of proposed reform. Some 90% were opposed to a shift.
The SDT’s consultation
Interestingly, the tribunal’s consultation document is somewhat anaemic in terms of justifying the proposed change. Its case is that (1) the Legal Services Board wants reform on the basis of public protection; (2) the current criminal standard has recently been the subject of judicial criticism (per Leveson, above); and (3) most other regulators have adopted the civil standard.
In policy terms, this is worryingly akin to copying someone’s homework without knowing if it is right or not. The tribunal even grudgingly acknowledges that the LSB’s view (that a civil standard will better protect the public) is not backed by any evidence.
The SDT’s gargantuan fine of £305,000 represents the most powerful argument for retaining the criminal standard of proof
The small print of the SDT’s obligatory Equality Impact Assessment does not inspire confidence, either. When addressing what sources of information they will rely on to identify the possible impact of the proposed changes, the SDT writes that ‘there is no existing source of information that will assist in identifying the likely equality impacts on different groups of people’. In the very next paragraph – where it is asked if there are any gaps in the information that might make it difficult or impossible to ascertain how different groups could be affected – the SDT’s perplexing answer is ‘not so far as can be ascertained’.
The SDT’s observation that most other regulators have adopted the civil standard of proof – and accordingly this should apply to solicitors too – is therefore inherently flawed. But there may be a rational way forward, at the core of which would be the assumption that all regulators apply equivalent standards and impose comparable sanctions on those who breach them (and therefore should have the same standard of proof).
This, however, is conspicuously not the case. An examination of the philosophy of different tribunals is instructive. For example, the GMC’s Medical Practitioners Tribunal Service stresses that its sanctions are not imposed to be punitive; by contrast, the SDT quotes the case of Bolton v The Law Society to make the point that ‘a penalty may be visited on a solicitor… in order to punish him for what he has done…’.
This difference in philosophy manifests itself in the sanctions that can be applied. At the top end of the spectrum, both bodies can professionally defenestrate someone by striking them off. However, unlike the GMC, the SDT has the power to award unlimited fines and uses this power frequently – almost as many solicitors were fined as were struck off in 2017.
To date the largest SDT fine has been a gargantuan £305,000. Although fines of this magnitude are certainly not commonplace, that fact represents the most powerful argument for retaining the criminal standard of proof. The SDT’s unusual power to award punitive fines (in a fashion clearly comparable to criminal courts) must be balanced by a commensurately high standard of proof.
To put it another way, if the SDT wants to use a civil standard of proof then it should willingly relinquish the punitive elements of its philosophy and its ability to levy fines. Fairness aside, if for not for any other reason it would be worth the SDT doing this just to see how the vets react.
Gregory Smith is a trainee in Hempsons’ London office and a member of the Junior Lawyers Division Executive Committee