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Lowering the bar: BSB to consult on standard of proof in professional misconduct cases

The Bar Standards Board (BSB) has published a 10-page consultation paper to consider views about lowering the standard of proof for prosecuting barristers accused of professional misconduct.

Currently, the standard of proof used in professional misconduct allegations is ‘beyond reasonable doubt’. The BSB is seeking views on whether this should be changed to the civil standard, ‘on the balance of probabilities’. The consultation closes on 21 July 2017.

The BSB argues that the switch would ‘bring the Bar’s disciplinary arrangements in line with most other professions.’

BSB director of professional conduct Sara Jagger commented: ‘The consultation means that the public can have confidence that any barristers breaching the standards expected of them will be held to account, and barristers can be assured that any complaints about their conduct will be dealt with fairly.’

She added: ‘We have robust procedures in place to make sure that the way in which we deal with complaints against barristers is both thorough and fair.

Hardwicke’s PJ Kirby QC (pictured) argued: ‘Where there are disputes on the facts then I remain of the view that the decision makers should be satisfied so as to be sure. They are dealing with a person’s career and I think they should be sure that something happened before making a finding that it did.

‘The fact that the continued application of the criminal standard of proof may be out of step with some other professions does not mean that we should follow the other professions.’

Earlier this year, more than 500 barristers signed an open letter to the BSB, criticising its suggestions for reforming the regime for barristers-in-training.

The letter, addressed to BSB chairman Sir Andrew Burns, stated that the Future Bar Training consultation paper dated October 2016, which sought to reform the Bar Professional Training Course, is: ‘not guided by a proper understanding of the BSB’s statutory objectives of promoting and protecting the public interest.’