The Bar Standards Board tonight agreed to lower the standard of proof required in disciplinary tribunals, downgrading it from the current criminal standard.
At its board meeting members agreed that the new standard of proof should be introduced by March 2019 in cases involving professional misconduct.
As it stands, the BSB and the Bar Tribunal and Adjudication Service rely on the criminal standard of proof; a case has to be proved beyond reasonable doubt. Under the new standard, cases will be determined on the balance of probabilities, which could make it easier for barristers to be disciplined.
The BSB’s move follows a consultation paper published earlier this year in which it proposed lowering the standard. The paper received 101 responses with around 12 in favour and the rest, predominantly practising or qualified barristers, against.
One of the respondents to the BSB’s consultation was the Solicitors Disciplinary Tribunal which did not give direct answers to the proposals but said it would be consulting on its own appropriate standard.
SDT clerk and chief executive Susan Humble told the BSB that the tribunal is not permitted to make public statements which might give rise to a future complaint of having apparent bias in its decision-making. The response added that the SDT would not wish its decisions to delay or accelerate the BSB’s reflections on its rules. The BSB said it would proceed with its proposals regardless of any decision taken by the SDT.
During today's meeting, board members dismissed the idea that the change would lead to unmeritorious cases being brought.
Aidan Christie QC said as the change relates only to cases brought before the tribunal he believed the complaints procedures were ‘robust enough’ to deal with groundless complaints.
The board stressed that only cases that come to the tribunal after the agreed implementation date will be tried under the new standard, meaning there would be a ‘crossover period’ under which both standards would be applied.