Should prosecutions before the Scottish Solicitors Discipline Tribunal move from the criminal standard of proof to the civil standard instead? The question is put by the tribunal in a public consultation launched today.

The independent tribunal, which hears all cases of alleged professional misconduct against Scottish solicitors, is under no statutory requirement to apply a particular standard, but has always employed the criminal standard in misconduct cases. Historically, it was also applied by other professional disciplinary bodies. However, there has been a shift towards use of the civil standard in recent years, particularly since the recommendations following the Harold Shipman inquiry.

In England & Wales, the Solicitors Disciplinary Tribunal consulted last year on whether to make this change; its decision is awaited. The Bar Standards Board will apply the civil standard to allegations of misconduct arising from 1 April 2019. The Faculty of Advocates and the Royal College of Veterinary Surgeons, along with the Scottish Solicitors’ Discipline Tribunal, are the only other professional disciplinary bodies in the UK which still apply the criminal standard of proof.

In a paper setting out the issues, the tribunal notes that proponents of the civil standard argue that it is not in the public interest for solicitors to avoid a disciplinary sanction when it is more likely than not that they are guilty of professional misconduct. This could be perceived by the public as working in the interests of the profession and not the public or consumers. Misconduct cases involving solicitors should not be subject to a different standard of proof than other professions.

On the other hand, the standard of proof might provide a safeguard for those accused of wrongdoing in a system which does not require corroboration and accepts hearsay evidence. It can be argued that the consequences of a disciplinary finding for a professional in terms of loss of livelihood and reputation are so serious that they should only flow when the tribunal is in no doubt that professional misconduct has been established.

Click here to access the consultation. Responses are invited by 4pm on 21 June 2019.