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SDT pushes for lower standard of proof in serious conduct cases but claims won’t lead to ‘easier’ prosecutions

The Solicitors Disciplinary Tribunal (SDT) has announced its intention to move from a criminal to a civil standard of proof but has ruled out the possibility of it leading to ‘easier prosecutions.’

Subject to approval from the Legal Services Board, which should be finalised in the next few weeks, the SDT wants the new rules to come into force on 25 November 2019, to coincide with the date the Solicitors Regulation Authority’s (SRA) new guidelines come into play.

It would mean changing the level of proof required for prosecution from ‘beyond all reasonable doubt’ to ‘on the balance of probabilities.’

SDT president Edward Nally commented: ‘For those who believe that this move will result in “easier” prosecutions of alleged misconduct breaches I respectfully reject that proposition. The Tribunal will continue to look for and identify cogent and compelling evidence before finding allegations proved.’

Nally also insisted that the SDT being in a minority of similar tribunals using the criminal standard did not factor into the decision to switch.

Professor Richard Moorhead (pictured), chair of law and professional ethics at University College London, told Legal Business: ‘It would be very strange if the SDT was not influenced at all by other tribunals.’

The shift came after a consultation between 16 July and 8 October 2018, when the SDT sought comments on the proposed new rules. It received 28 external responses.

The SDT published a response to the consultation, in which it stated it was wary of a perception that it would be easier to secure a finding against a practitioner. However, it put the onus on the SRA to ensure such things do not happen: ‘balanced against this is the fact that [the] SRA have significant disciplinary powers which they can and do exercise already for less serious matters… in other words, the criteria for deciding whether a case is referred to the Tribunal are based on the seriousness of the allegations, not the standard of proof.’

The SRA has backed the new rules. Chair, Anna Bradley said: ‘We welcome the Tribunal decision to move to the civil standard of proof… bringing it into line with other professional tribunals across many sectors and ensuring that all legal regulation in England and Wales uses the same standard.

‘This means that when something goes wrong, the public can be more confident that their interests come first.’

Moorhead agreed: ‘It’s a good move. It says that the regulator is acting in the public interest. If something serious has gone wrong then that person needs to be brought before the SDT.’

Graham Reid, professional regulation specialist at RPC, told Legal Business that he did not expect the changes to have a big impact on ease of prosecution, outside of cases concerning dishonesty.

‘Sometimes a case is decided on the cogency of the evidence but that becomes especially important with allegations of dishonesty, it’s such a hard thing to pin down,’ Reid said.

Reid did also admit the lowered proof threshold may make it easier for the SRA to bring a prosecution to the SDT, citing Rule 10 of the Disciplinary Procedure Rules: ‘The SRA may make an application to the Tribunal in respect of a regulated person at any time, if the SRA is satisfied that there is sufficient evidence to provide a realistic prospect that the application will be upheld by the Tribunal.’

For more on the SDT’s standards of proof, read ‘You’re masterful, Mr President: Standards of proof debate takes odd turn’ written by Moorhead.