The Solicitors Regulation Authority has admitted it does not expect any immediate change in the standard of proof when prosecuting solicitors, despite renewing calls to lower the threshold.
Responding to a consultation on Bar Standards Board proposals to introduce a civil standard for barristers, the solicitors’ regulator urged its sister body to press on with immediate reform. However, a change along similar lines for solicitors was not ‘imminent’, it states.
The SRA has long campaigned for a reduction in the current criminal standard of proof for prosecuting solicitors. The timing of the latest announcement is noteworthy, as the SRA failed last week in its prosecution of human rights firm Leigh Day and three of its solicitors following the longest ever hearing at the Solicitors Disciplinary Tribunal. The respondents were cleared of allegations of misconduct following a seven-week hearing that could end up costing at least £10m.
In its response to the BSB, the SRA says the continued need for a criminal standard of proof at professional conduct hearings is ‘disproportionate’ and risks putting the interests of members of the profession ahead of those of the public.
'The higher standard of proof creates higher costs and increases the chances of a person who is not safe to practise remaining within the profession,' continues the response. 'The higher burden of proof also creates an incentive for defendants to fight cases, rather than to settle them through a paper-based process.'
Unlike for barristers, a change in the standard of proof for solicitors can only be made by the tribunal itself or by parliament.
The SRA said the BSB should not wait for the tribunal to move to a civil standard of proof and should act immediately in the public interest.
The issue has dominated regulators' thoughts since last November, when Lord Justice Leveson, president of the Queen’s Bench Division, said the current criminal burden of proof at the SDT needs to be looked at again. This was after the High Court upheld an SRA ban on an immigration solicitor that had been quashed by the tribunal.
Leveson's colleague Mr Justice Leggatt said the difference in standard of proof was 'unsatisfactory and illogical'.
The BSB consultation paper says different rules for lawyers, compared with other professions, beg the question why barristers and solicitors are accorded ‘what might appear to be preferential treatment’. Veterinary surgeons are the only other profession where misconduct allegations are assessed on criminal, rather than civil, standard of proof.