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The Standard of Proof for Solicitors and other professional regulators

The Solicitor’s Regulation Authority (SRA) is the regulator of legal services in England and Wales. When the SRA conduct an investigation into a solicitor’s conduct, it uses the civil standard of proof (“a balance of probabilities”) to make its findings, as per the Disciplinary Procedure Rules 2011.

The Solicitor’s Disciplinary Tribunal (SDT) adjudicates upon alleged breaches of the rules and regulations by solicitors. The SRA will refer matters to the SDT, usually because of the SDT’s wider sanctioning powers such as unlimited fines and the ability to permanently strike a solicitor from the roll. In contrast to the SRA, the SDT operates on a criminal standard of proof which means that the finding of misconduct must be “beyond reasonable doubt” or "satisfied so as to be sure”.

The civil standard “balance of probabilities” means that the misconduct is more likely than not to have taken place which equates to a 51% probability, whereas it is generally accepted that the criminal standard “beyond reasonable doubt” is around a 91% probability of guilt. This obviously generates a huge disparity in decision making given that the two bodies are operating within the same arena.

One of the arguments for the SDT implementing a higher burden of proof is that the potential professional and reputational consequences of the sanctions available are very serious. However, the current system means that a finding could be made by the SRA according to “a balance of probabilities” but if the same matter were referred to the SDT, a much higher evidential level would have to be reached to make a disciplinary decision.

The Bar Standards Board is the regulator of barristers in England and Wales. The BSB has recently launched a consultation about the standard of proof that should be used in its own disciplinary proceedings. Currently, like the SDT, a criminal standard of proof is used, however this is at odds with most other professional regulators. The General Medical Council, the Financial Reporting Council and the Royal Institute of Chartered Surveyors all operate to a civil standard of proof.

The SRA publicly opposes the SDT’s use of the criminal standard of proof. They have previously said that it is “costly, burdensome, unfair to the users of legal services and undermines confidence in the profession”. Their stance is that it is nonsensical for an appellate tribunal to adopt a different standard of proof to that used by the initial decision maker.

The SDT has now confirmed that it will begin its own consultation on where to set the standard of proof. It could be that solicitors will soon be facing serious allegations that carry life-changing sanctions, yet these will only need to be proved on a balance of probabilities.

Contact Saunders Professional Discipline and Regulatory Solicitors

For more information on the above matter, speak with a member of our team to see if we can help you. Please call us today on 02076324300 or contact us via our online enquiry form.

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