Tribunal chiefs have pledged to bring clarity to the disciplinary process as they ask whether it should be easier to prosecute solicitors for misconduct.
The Solicitors Disciplinary Tribunal confirmed today that it has opened a consultation on replacing the current criminal standard of proof required for proving guilt.
The question, trailed in May this year, is whether to apply the civil standard – requiring the tribunal to prove a solicitor’s guilt on the balance of probabilities – in line with most other professions.
The tribunal, which closes its consultation on 8 October, asks whether the current standard of proof is still fit for purpose. Edward Nally, president of the tribunal, said now is a perfect opportunity for it to tackle the question of the appropriate standard of proof to be applied in the future.
‘I have said before that we will take the initiative on this, and look forward to the results of the consultation with great interest,’ he said. ‘My intention is that at the end of the process the new rules that emerge will be sustainable and clear, providing a solid framework for those engaging with the tribunal in the future.’
Advocates for change, including the Solicitors Regulation Authority, say the public is not adequately protected by the current rules and that the threshold is too high for finding a solicitor has breached the rules. It is envisaged that a change in the rule will mean more outcomes are agreed between the SRA and the respondent parties, without resorting to costly and time-consuming SDT proceedings.
But opponents say the bar should be high for potentially ending a solicitor’s career, and if the standard of proof is lowered then individuals may feel forced to admit something knowing they are more likely to be found guilty at any hearing.
A spokesperson for the Law Society of England and Wales said: 'To help us prepare for this consultation, we sought our members' views on the standard of proof at the Solicitors Disciplinary Tribunal so that we continue to reflect the views of our membership in our policy position.
'Solicitors said that the high prosecution success rate and the serious consequences of rulings are both good reasons for the SDT to require the regulator to prove allegations to ‘beyond reasonable doubt’.
'Respondents also suggested there is a lack of evidence to show that the application of the criminal standard of proof has been problematic in achieving a fair outcome. Recognising the substantial majority of our members’ views, the Law Society supports retaining the criminal standard of proof.'
The issue is further clouded by the SRA adjudicators working on in-house disciplinary action to a civil standard. If cases are appealed from the tribunal to the High Court, a civil standard is also applied there.
Lord Justice Leveson, president of the Queen’s Bench Division, said in court in 2016 that the approach taken to proceedings at the SDT needed ‘re-evaluation’ to protect the public.