A nervous disposition
“Fairness is a constantly evolving concept. Hawkins J (Memoirs, chapter IV) recalled a defendant convicted of theft at the Old Bailey in the 1840s after a trial which lasted 2 minutes 53 seconds, including a terse jury direction: "Gentlemen, I suppose you have no doubt? I have none". Until 1898 a defendant could not generally testify on his own behalf. Such practices could not bear scrutiny today. But it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.” Lord Bingham, R v H, R v C  UKHL 3.
A decade ago it was generally accepted that disciplinary proceedings against professional should be determined by the criminal standard. If a doctor or solicitor was to be removed from their profession then it was right that it would only be in circumstances that the allegations against them had been proved to the highest standard. This approach was also supported by case law. In Bhandari v Advocates Committee  3 All ER 742 the Privy Council observed:
'… in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.'
In Re a Solicitor  QB 69, Lord Lane, after quoting Bhandari stated:
“It seems to us, if we may respectfully say so, that it is not altogether helpful if the burden of proof is left somewhere undefined between the criminal and the civil standards. We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, put in another way, proof beyond reasonable doubt.”
The matter was further considered in Campbell v Hamlet  UKPC 19 where the Privy Council stated:
“that the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession, their lordships entertain no doubt.”
However, shortly after Campbell v Hamlet was decided the plates began to shift. This change started with the Fifth Shipman Report that recommended that the civil standard should usually be appropriate in the case of the General Medical Council. By 2010 all of the healthcare professions had moved to the civil standard. In 2012, the Law Commission in its report, “Regulation of Health Care Professionals; Regulation of Social Care Professionals in England”, made the following observation:
“It is not acceptable that a registrant who is more likely than not to be a danger to the public should be allowed to continue practising because a panel is not certain that he or she is a danger”
The move to the civil standard by the healthcare profession left only three professions of note that continued with the criminal standard. The first was the Royal College of Veterinary Surgeons. The Veterinary Surgeons and Veterinary Practitioners (Disciplinary Committee) (Procedure and Evidence) Rules Order of Council 2004 makes specific provision for the standard of proof in disciplinary proceedings as being the Disciplinary Committee should be “satisfied to the highest civil standard of proof, so that it is sure”. As the requirement is statutory then a change to the RCVS rules is required and has not, as yet, occurred.
The remaining two professions are barristers and solicitors. Notably, other legal professions such as licensed conveyancers and legal executives use the civil standard and indeed this is the preferred standard of the overarching regulator, the Legal Services Board, (see their paper Regulatory sanctions and appeals processes; An assessment of the current arrangements). So the question really is why in 2017 do both solicitors and barristers continue with the criminal standard.
The answer to that question lies partly in the cases referred to above and partly in relation to the governance arrangements of those two professions, most notably solicitors.
The determination of serious allegations in relation to solicitors lies not with the Solicitors Regulation Authority as regulator but with the Solicitors Disciplinary Tribunal. That body is structurally independent of the SRA and its sole function is one of adjudication. Indeed its origins can be traced back to the historical jurisdiction of judges over solicitors as officers of the court which has been delegated to the SDT. Whilst the SRA adopts a civil standard in its decision making which includes imposing fines of up to £2000, the SDT adopts the criminal standard. The SDT’s procedure rules are themselves silent as to the standard of proof but the SDT has in various decisions taken the view that Re a Solicitor and Campbell v Hamlet are authority for the proposition that the criminal standard applies. Whilst there is an argument that Re a Solicitor only applies to cases where the allegation is tantamount to dishonesty, it is practically very difficult to determine where to draw the line and therefore the SDT has applied the criminal standard across the board. The SRA has on one occasion sought to challenge this approach by way of an appeal (see Richards v The Law Society  EWHC Admin) but the Divisional Court did not consider it was an issue it needed to decide on the facts of that case.
In contrast to the arrangements involving solicitors, the regulator, the Bar Standards Board, does have a role in determining the standard of proof as the equivalent of the SDT, the Bar Tribunal and Adjudication Service applies the BSB’s Disciplinary Tribunal Regulations. This difference in governance reflects the difference in the way the regulation of the two professions has evolved. The BSB’s Disciplinary Tribunal Regulations specifically provide for the criminal standard in the light of the authorities described above.
On 2nd May the BSB issued a consultation about adopting the civil standard across the board. Whilst this is entirely consistent with the trends described above it also reflects the impact of the Decision of the Divisional Court at the end of last year in The Solicitors Regulation Authority v Solicitors Disciplinary Tribunal  EWHC 2862 (Admin), normally referred to as “Arslan”. That case concerned the question of what standard the SDT should apply when it exercised is appeal jurisdiction over SRA decisions on the civil standard. These mainly related to fines below £2000. The court considered that on such appeals the SDT should apply the civil standard and although the more mainstream SDT jurisdiction of first instance disciplinary proceedings against solicitors was not before it, the Court observed:
“I [..] see considerable force in the point that the climate and approach to professional regulation and discipline have changed since Re a Solicitor was decided. Persuasive as [counsel’s] submissions were, however, I would decline the invitation to express a concluded view on the question [of the standard of proof] in the present case. To do so would require us to decide whether a previous decision of this court and a decision of the Privy Council should not now be followed. Those authorities do seem to me ripe for reconsideration. But not in a case where the Tribunal was not undertaking a primary fact-finding role so that the question of what standard of proof is appropriate in that situation does not arise. In these circumstances, any views that we express on the point could only amount to obiter dicta and would have no binding force.” (Legatt J) and
“I emphasise the observations of Leggatt J in relation to the standard of proof in these cases and underline the need for a re-evaluation of the approach to disciplinary measures intended to protect the public. Notwithstanding [counsel’s] encouragement to do so, to go further than the confines of this case would not have been appropriate.” (Leveson LJ)
The effect of the Arslan decision is to throw into doubt that there remains any judicial support for the criminal standard. This is recognised in the BSB’s consultation and it therefore seems likely that by early 2018 only the Solicitors Disciplinary Tribunal will maintain the criminal standard amongst legal services regulators.
All of this leaves the SDT in an awkward position. Whilst Arslan undermines Re a solicitor and Campbell v Hamlet, it could not and did not overrule them. They therefore remain good law. Nonetheless the direction of travel is obvious. The only way this difficulty can be resolved is either by an appeal from the SDT on the question of standard of proof in relation to its first instance decisions or a change to its rules which are contained in the Solicitors (Disciplinary Proceedings) Rules 2007. The latter seems more likely and may only be a question of time.
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