July 31, 2019

An end to the criminal standard of proof in professional oversight? It’s beyond reasonable doubt

The Legal Services Board (LSB) in England and Wales have changed the standard of proof in misconduct proceedings for solicitors to the civil standard of “on the balance of probabilities”. This represents a continuing move by disciplinary tribunals and professional regulators away from the criminal standard of “beyond reasonable doubt”. Does this mark the final ringing of the death knell for proof beyond reasonable doubt?

The change comes after an application by the Solicitors Disciplinary Tribunal (SDT) made following a consultation process – this despite the majority of the respondents to the consultation failing to support the change. The new standard will take effect from 25 November 2019.

Previously the use of the criminal standard of proof in regulatory proceedings was commonplace. However following the Shipman Inquiry in 2008/09 there has been a widespread reconsideration.  The Inquiry encouraged the medical profession to look at moving to a civil standard. That would, in part, remove what was seen as a higher premium being placed on a doctor’s fair treatment than on the protection of patients and the public.

This LSB’s decision brings the SDT into line with the regulators of other professions. Also this year the Bar Standards Board switched to a civil standard of proof. The General Medical Council, General Dental Council, Nursing and Midwifery Council and other regulators have all applied this standard for some time. But there are still a small number of regulators yet to make a change.

The Royal College of Veterinary Surgeons requires that a committee is “satisfied to the highest civil standard of proof, so that it is sure” which is, in effect, the same as requiring the criminal standard. In Scotland solicitors are regulated by the Scottish Solicitors’ Discipline Tribunal (SSDT). The standard of proof applied to the factual stage is still the criminal standard, though the SSDT are currently consulting on changing this. Also in Scotland, the Faculty of Advocates maintains a criminal standard of proof in disciplinary proceedings against its members.

At the time of the Shipman Inquiry’s recommendations there was a concern that this would result in unjust findings against members of the medical profession based upon a flimsy evidential footing. That has, by and large, not been the case. Jurisprudence from the civil courts has provided reassurance that serious allegations - with the inherent possibility of ending careers - still require a sufficiency of evidence to be proved on the balance of probabilities:

“[…] the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.” (per Lord Nicholls in In Re H (Minors) [1996] AC 563)

This is not the same as requiring a higher level of proof, as it has often been misinterpreted (see the Supreme Court’s decision in In Re SB (Children) [2009] UKSC 17), but rather demonstrates that the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.

The SDT is the latest in a long line of bodies to reduce the standard of proof required in disciplinary proceedings. While it may be some time until the final bastions of the criminal standard follow suit (the RCVS rules will require legislation to effect change) it seems inevitable that the end is nigh.