Using a civil standard of proof for quasi-criminal sanctions doesn’t give solicitors a sporting chance
As the SDT somewhat gleefully notes in their application, the LSB has very clearly indicated its enthusiasm for such a change in the recent past, suggesting that the SDT doesn’t exactly face an uphill battle to get across the line.
This suspicion that the SDT doesn’t have to try very hard isn’t ameliorated by their rather perfunctory arguments for making this change. Their original consultation document made three arguments in favour of changing the standard of proof.
The first was that the LSB was in favour of the change (which seems more like an observation), the second was that the criminal standard had recently been criticised in a judgment (which is technically accurate but lacking in nuance - see below) and thirdly that virtually all other professional regulators have adopted the civil standard of proof (which suggests rather blindly following a herd, potentially whether it runs in the right direction or not).
Ultimately, the SDT’s arguments coalesce under the (laudable) banner of improving consumer protection by making it easier to get rid of errant practitioners. However, a closer look at the outcomes of SDT cases suggests that this isn’t exactly a problem; the most recent SDT annual report available (2017) contains figures for 2015-16 where their prosecution success rate (with the criminal standard of proof being employed) was a vertiginous 98%.
Moreover, there are strong arguments for retaining a criminal standard of proof. Unlike some others I give short shrift to the argument that a higher standard of proof is required as a solicitor’s livelihood and/or reputation are at risk following an adverse judgment, as that would plainly be the case were they convicted of a criminal offence with the equivalent standard employed in court. However, this conceptually segues into a more valid point – that there are keen parallels between the sanctions available to the SDT and criminal courts.
In particular (and unlike other professional regulators) the SDT has the power to levy unlimited fines and imposed one of £305,000 a few years ago. More prosaically, the SDT will often award costs (again in a fashion dissimilar to other regulators) and awarded almost twice as much in costs (£2,725,193) than it levied in fines (£1,548,501) in 2017.
The philosophy of the SDT is also worth considering - in contrast to other regulators, the SDT acknowledges that its penalties can be purposefully punitive.
Taken together, the punitive approach of SDT penalties and its ability to award immense fines (and de facto practice of awarding huge costs) are surely more akin to criminal than civil proceedings, and it is difficult to see how a civil standard of proof is compatible with this dynamic.
There is a further fly in the SDT’s ointment.
As mentioned above, the SDT have used recent judicial criticism of the criminal standard of proof as an argument for reform. This reflects comments in the 2016 SRA v SDT case that the standard of proof is ‘ripe for reconsideration’. However, not only did these obiter comments not lead to a view on what a new standard should be, Legget J. noted that such decisions needed to stem from cases where the topic arose (as opposed to consultation documents perhaps). This raises the crucial question of whether the SDT has the legal authority to make the proposed change.
The SDT does not have significant hurdles to surmount in its efforts to satisfy the LSB that the standard of proof needs to change.
The LSB can essentially only refuse an application if it would be prejudicial to the statutory ‘Regulatory Objectives’ or contrary to the public interest. Without rehearsing the Regulatory Objectives, it is telling that the SDT’s application acknowledges that the proposed change is ‘neutral’ to the majority of the Objectives, save for the two which respectively concern promoting and protecting the public and consumer interests.
This brings things rather neatly back to the observation that the SDT (with its recent 98% success rate) hardly seems fettered in its efforts to promote and protect these interests with the criminal standard of proof being employed – and if that is the case, then given the arguments against changing the standard it would seem grossly disproportionate to do so.
This begs a more profound question of whether the LSB’s statutory framework for rejecting applications is watertight - if the SDT were to advocate an even lower standard of proof - ‘no smoke without fire’ perhaps - then would the LSB be duty-bound to accept it?
With apologies for further sporting metaphors - should these goalposts be moved (or do we need a less partial referee)?
Gregory Smith is a trainee solicitor at Hempsons and a member of the Junior Lawyers Division executive committee.
This article was first published on 3 June 2019 by the Lawyer and is reproduced by kind permission.