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Difficult decisions: the standard of proof in the SDT

In July 2018 the Solicitors Disciplinary Tribunal (“SDT”) launched a consultation that asked whether it should change its rules to allow for the civil standard to be applied to cases it hears.   At present, where the SDT is acting in a fact-finding capacity, cases are tested to the criminal standard of proof. 
 
The debate on which standard is appropriate to regulatory decisions boils down to a balancing act between the risk to the public and the risk to individual solicitors.  Is it in the public interest for a solicitor be exiled from the profession if it is more likely than not that they have done something sufficiently wrong to warrant it, but where there is still reasonable doubt?  To put it a different way, does the need to protect the public demand that a solicitor is sent out of the profession where the SDT thinks the solicitor has probably done something seriously wrong, but isn’t sure?  Arguably, this is putting it in overly broad terms and so it is worth looking at the situation in closer detail, to better understand the implications.

Shifting sands

For more than a decade, the mood has been trending towards the adoption of the civil rather than the criminal standard of proof in regulatory decision-making.  By 2010 and in the wake of the Shipman Inquiry, medical regulators that had been applying the criminal standard made the move to the civil standard.  From 2010 onwards, the SRA started to use its newly enhanced disciplinary powers and opted to use the civil standard, enshrining its approach in the SRA Disciplinary Procedure Rules 2011.
 
In the absence of a specific written rule to follow, the SDT has looked to the common law to guide its approach; the courts have variously indicated that:
 
  • they could not “envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities”;  
  • “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 criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession, their lordships entertain no doubt” 
 
These decisions demonstrate how the precise test has shown itself to be somewhat elusive.  The shapeshifting standard has resulted in some forming the view that a sliding scale approach is appropriate, where the seriousness of the conduct and/or the outcomes dictate the height of the evidential hurdle to be overcome.
 
Since those decisions, Lady Hale held in a case relating to care proceedings that: “There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof.”  She stated that care proceedings are not of that nature, because “They are not there to punish or to deter anyone”,   before adding that “Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”   Lady Hale’s comments seem to lay waste to the idea of a sliding scale standard of proof, but do leave open the possibility that the criminal standard of proof applies to regulatory proceedings.  This is because, in the legal regulatory context, sanctions serve punitive and deterrent purposes, even if the primary aim of legal services regulation is to protect the public.  In terms of the balance of probabilities test, Lady Hale seems to be saying that it involves a decision about the version of events that more probably took place, taking into account the inherent probabilities of the events having happened.
 
Looking to Europe, authorities from the European Court of Human Rights indicate that under Article 6 of the European Convention on Human Rights, professional conduct cases can qualify as a criminal complaint where a charge could result in the accused being struck off. 

Ripe for reconsideration

At the end of 2016, Leggatt J indicated in a judgment on a matter on appeal from the SDT, where the latter was performing its review rather than its adjudication role, that he agreed with counsel for the SRA that “the present situation in which the Tribunal, when acting as a primary fact-finder applies a different standard of proof from that which the SRA applies when carrying out that role is unsatisfactory and illogical.”  He continued:
 
“I also 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 his submissions were, however, I would decline the invitation to express a concluded view on the question 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. As the former President of the Queen's Bench Division, Sir Anthony May, said when rejecting a previous attempt by [counsel] on behalf of the SRA to argue this point in a case where it did not affect the decision: "The court is not in the business of conducting academic seminars, because decisions which develop the law need to do so in cases where the point at issues matters." See Richards v The Law Society [2009] EWHC 2087 (Admin), para 21.” 
 
Looking at the case law then, it seems there is a basis in law for saying the criminal standard applies in disciplinary proceedings, but that there has also been a call for the approach to be reviewed.

Diverging destinies?

A little over six months after Leggatt J gave judgment in the High Court, the Bar Standards Board (“BSB”) consulted on the standard of proof to be applied in its misconduct hearings.  On publishing its response to the BSB’s consultation, the SDT’s President, Edward Nally, stated that:
 
“The SDT will remain the master of its own destiny in this debate. Its membership will do what it believes to be right in a rational, informed, evidence-based manner. The SDT will lead on the issue of the standard of proof applied in its proceedings on its own terms and in its own time and will not be distracted by the sometimes ill-informed rhetoric of others. The SDT is watching the BSB consultation with interest, recognising that the Bar’s tribunal is a smaller body than the SDT with different issues.”
 
The BSB has subsequently announced its decision to change the standard of proof and that from 1 April 2019, disciplinary proceedings for professional misconduct of those it regulates, will be subject to the civil standard of proof.   Time will tell how the SDT has interpreted the BSB’s decision and what decision it will arrive at for itself.

A matter of mechanics

Whatever decision is made by the SDT about the standard of proof, perhaps a more pertinent matter to consider is how decisions are actually arrived at, both by the regulator and later by the tribunal.  Some have queried whether the standard of proof really makes a difference to a decision on the facts and, logically, that must be right where the facts are not in dispute.  Digging deeper then, the actual mechanics of how the facts are arrived at are significant, which is why some have highlighted the importance of the forensic investigation stage and of there being a coherently articulated prosecution.  Applying the Lady Hale approach considered above, where the fact-finder arrives at a decision about the version of events that more probably took place, taking into account the inherent probabilities, it is self-evident that the ability of the accused to understand what they are alleged to have done and to comprehensibly explain their conduct, will inform that evaluation process.
 
Once a decision is made about the facts, what matters next is the extent to which the conduct transgresses the standards of the profession and, where that has taken place, a decision as to the appropriate sanction for the behaviour.  At the most severe end of the spectrum is the sanction to strike a solicitor off the Roll; an area of conduct where this frequently comes into focus, is in relation to dishonesty.  This is because when the SDT makes a finding of dishonesty, the usual penalty is for the individual to be struck off the Roll, unless there are “exceptional circumstances”.

A case of circumstances

What constitutes “exceptional circumstances” has been receiving scrutiny in the courts over the last few weeks.  Appearing in the High Court on 31 October, counsel for the SRA argued that broadening the meaning of “exceptional circumstances” would make it difficult ever to strike a solicitor off the Roll when they were found to have acted dishonestly, saying: “There is nothing unique about a solicitor suffering from stress at work.  It is very sad but it is a fact of life… Solicitors must be able to conduct themselves honestly whatever is going on in their personal lives or with their health.  The reputation of the profession demands no less.”   Can it really be right that any broadening of the meaning of “exceptional circumstances” will make it difficult to ever strike a solicitor from the Roll for dishonesty?  Does the reputation of the profession really require such an inflexible stance and could it undermine rather than command the trust and respect of the public?  Should it be accepted as a “fact of life” that solicitors are simply expected to endure stress at work?
 
In its judgment on the case, published on 13 November 2018,  the High Court decided that in each of the three cases it was reviewing, the SDT had failed to carry out the balancing exercise it needed to carry out correctly, in order to decide whether exceptional circumstances justified a sanction short of strike-off, where each tribunal had made findings of dishonesty.  Lord Justice Flaux explained:
 
“when the SDT came in each case to its evaluation of whether there were exceptional circumstances justifying a lesser sanction, it did not focus on those critical questions of the nature and extent of the dishonesty and degree of culpability and engage in the balancing exercise which the evaluation requires between those critical questions on the one hand and matters such as personal mitigation, health issues and working conditions on the other. Had it done so, it should have concluded that in none of these cases could the dishonesty be said to be momentary.”
 
The significance of the judgment is that where a finding of dishonesty is made, neither mental health issues (specifically stress or depression) nor pressure of work or extreme working conditions (whether coupled with stress or depression, or not), can amount to exceptional circumstances justifying a sanction short of strike-off.  Something more is needed to amount to exceptional circumstances, something that relates to the dishonesty itself, that is, the nature, scope and extent of the dishonesty; whether it was momentary, of benefit to the solicitor and whether it had an adverse impact on others.  The precise elements that need to be balanced to decide if exceptional circumstances apply will be fact-specific.  The judgment also points out that, in applying the Ivey dishonesty test, the SDT had to make findings about the actual states of mind of the respondents whose cases it heard.  In the three cases the High Court was reviewing, the SDT had made findings that despite their mental health issues, each respondent knew the difference between honesty and dishonesty and they knew that what they done was dishonest.
 
When you consider the life-changing implications of a dishonesty finding for the individual, it is little wonder the criminal standard is considered by some, as the more appropriate hurdle.  In deciding whether the criminal standard should be maintained, or its rules should be changed to allow for the civil standard to be applied, the SDT will need to balance the interests of the public and solicitors.  In light of this latest judicial pronouncement reiterating the consequences of a finding of dishonesty, the decision the SDT needs to make seems all the more stark.
Emma Walker
23.11.18

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