The protection of the rights of professionals to ply their trade is again under scrutiny as the Bar Standards Board consults on ‘downgrading’ the standard of proof in disciplinary proceedings from the criminal standard (‘beyond reasonable doubt’) to the civil standard (‘on the balance of probabilities’). However, this is an unnecessary exercise that allows standards of disciplinary investigations to diminish with comparatively little increased protection for the public. The criminal standard ensures that the regulator’s investigatory processes must be thorough and robust, something that is in the interests of the public and the profession.
The consultation comes on the back of calls from commentators, consumer rights groups and notable judgments from Lord Justice Leveson and Mr Justice Leggatt (among others) for the rules applicable to the Bar Disciplinary Tribunal (BDT) and the Solicitors Disciplinary Tribunal (SDT) to fall into line with other professional regulatory bodies. The standard for the BDT is set by regulation 11 of the Disciplinary Tribunal Regulations 2009. In the case of the SDT, the standard has been adopted through common law (Re A Solicitor, 1993).
The drive for the standard adopted by the BDT and the SDT to fall into line with other regulatory and disciplinary proceedings (and, as such, in line with other civil law proceedings) also follows through in calls for the test for dishonesty to be ‘unified’ across all civil proceedings. Currently, the test to be used in disciplinary proceedings is as set out in Twinsectra v Yardley  UKHL 12, whereas in Kirschner v General Dental Council  EWHC 1377, Mr Justice Mostyn calls for a unification and the adoption of the common civil test as set out in Barlow Clowes International Ltd v Eurotrust International Ltd  UKPC 37.
While the profession will be supportive of efforts to protect clients and to ensure the highest standards of conduct, many still feel that the disciplinary investigation processes adopted, particularly by the SRA, are often discriminatory (in the case of solicitors, between large and small firms and also between practice areas) and that processes are inadequate and inefficient, leaving many legal professionals feeling exposed to the risk of arbitrary and ill-conceived investigations and prosecutions. Many firms consider the risk of arbitrary and heavy-handed regulatory involvement to be one of their most significant commercial risks.
In my own experience of defending solicitors within the SDT, I have witnessed first-hand the devastating impact on legal professionals defending prosecutions that should never have proceeded. Such examples will inevitably reduce support from the profession for a lower standard of proof to be applied.
Indeed, in stark contrast and to highlight the profession’s concerns, the judgment of Mr Justice Mostyn in Malins v SRA  EWHC 835 will be widely welcomed in removing the possibility of the SRA pursuing allegations of ‘lack of integrity’ in relation to what are, in all reality, allegations of dishonesty in order to avoid having to reach the necessary standard of proof for such an allegation (whether it be the Twinsectra or Barlow Clowes test for dishonesty).
The criminal standard of proof is intended to protect individuals from the most draconian of sanctions (imprisonment) while balancing the rights and needs of victims and the protection of the public from the most serious of crimes. If the criminal standard is considered to achieve such a balance in the most extreme of cases, why should it not be suitable in achieving the balance in disciplinary proceedings?
The criminal standard holds the regulators to account for the quality of their investigations. Lowering the standard to the civil standard does not change the nature of the professional conduct in question nor alter the sanctions available to the tribunal. Instead it grants an opportunity for the regulator to achieve what it considers to be a successful outcome without the requirement to provide sufficient evidence to rule out reasonable doubt. It is not the case that the SDT and BDT should bend to meet the standard of the rest of the regulatory industry, but rather that the SDT and BDT have stood resolutely against the watering down of the evidential standards and weaker investigatory processes adopted by other regulators in an effort to increase ‘consumer confidence’.
The criminal standard remains the suitable test for protecting the public from crime while ensuring that individuals are only sanctioned after a complete and efficient investigation and examination of the facts. There is no reason why that should be different in the legal profession (or, indeed, in any other disciplinary proceedings) other than to ease the investigatory obligations of the regulators. Unless and until the regulators adopt their own procedures to ensure a high standard of investigation, legal professionals must continue to rely on the criminal standard of proof protecting their rights and the public, as it does with criminal offences.
Despite my misgivings, I fear that the pressure to provide ‘consumer-friendly’ headlines and increased ‘consumer protection’ will, in the end, be irrepressible.
Matt Rowley, senior solicitor, Harrowells Ltd (Pocklington, Yorkshire)