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Regulator ‘pushing open door’ over civil standard of proof

SRA confident about statutory change to tribunal evidence rules

8 December 2016

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It is only a matter of time before the standard of proof in the profession’s disciplinary tribunal is lowered to the civil standard, the Solicitors Regulation Authority has predicted.

Speaking after the regulator’s monthly board meeting yesterday, chief executive Paul Philip said the Solicitors Disciplinary Tribunal was one of a very small number of professional courts – such as the police discipline appeals tribunal and the Bar Standards Board – where the higher criminal standard still applied.

All other tribunals hearing appeals from professional bodies, including in the medical professions, applied the civil burden of proof, Philip commented. The former General Medical Council chief operating officer said the regulator has made representation to the government to this effect and would continue to press for statutory change.

‘We’re pushing an open door,’ he said, before adding that there was broad consensus for the move.

Under rule 7 of the SRA’s disciplinary procedure rules, the civil standard applies to regulatory proceedings, requiring the watchdog to decide a case ‘on balance of probabilities’. No such principle exists in relation to proceedings before the tribunal and the accepted approach has been to apply the criminal standard – ‘beyond reasonable doubt’.

Until now support for this approach has come from decisions such as the 1993 ruling in Re A Solicitor [1993] QB 69, where Lord Lane suggested that, in the main, where SDT proceedings involved behaviour that was ‘tantamount to a criminal offence, the tribunal should apply the criminal standard of proof’.

However, the Legal Standards Board has long been in favour of the civil standard. This was ‘the most appropriate standard to use and that its use should be introduced across all regulators, tribunals, and appellate bodies,’ it wrote in its 2014 report on regulatory sanctions and appeals. The super regulator renewed its call for a switch to the civil standard ‘at all stages of the enforcement process’ in its 2015 thematic report on regulatory standards.

Further support has since come from the judiciary, albeit indirectly, in a case earlier this year involving an immigration case worker. Huseyin Arslan had been working with a well-known legal aid firm under a consultancy contract. Following a number of complaints, the SRA issued a rebuke and imposed a fine on Arslan. In March, the SDT quashed the decision, saying the SRA had been wrong to use the civil standard of proof.

Hearing the case on appeal, the High Court last month found in favour of the SRA but declined to rule on the standard of proof to be applied in the SDT. Nevertheless, Mr Justice Leggatt said he agreed with ‘persuasive’ submissions that the application of a different standard in the tribunal was ‘unsatisfactory and illogical’.

Adding his own thoughts to Leggatt J’s comments in relation to the standard of proof in SDT cases, Mr Justice Leveson said obiter, that these underlined ‘the need for a re-evaluation of the approach to disciplinary measures intended to protect the public’.

Earlier this year, the government’s Insurance Task Force published its own report on the fight against fraud. One of its recommendations was the adoption of the civil standard in respect of insurance fraud investigations. ‘We agree that has to be the right way forward,’ Philip said at the time.

Both Philip and SRA policy director Crispin Passmore remained hopeful that the government would consider the issue before long but commented that ‘other events had intervened that got the government’s attention’.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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