Should civil standard of proof apply in professional misconduct cases?



The Scottish Solicitors’ Discipline Tribunal (SSDT) has launched a consultation on the question of whether the civil standard of proof should apply in professional misconduct cases.

There is no statutory requirement for a particular standard, but the SSDT has always employed the criminal standard in misconduct cases.

The burden of proof in professional misconduct cases is on the complainer. The facts in a misconduct case must be proved to the criminal standard of proof (beyond reasonable doubt). In respect of all other matters, the civil standard of proof (balance of probabilities) is applied.

The SSDT is governed by the Scottish Solicitors Discipline Tribunal Procedure Rules 2008 which are approved by the Lord President. Hearsay evidence is admissible and there is no requirement for corroboration.

Historically, the criminal standard 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 Shipman Inquiry.

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.

In England and Wales, the Solicitors Disciplinary Tribunal (SDT) and the Bar Standards Board (BSB) apply the criminal standard when determining charges of professional misconduct.

The SDT consulted from July to October 2018 on whether it should apply the civil standard. Its decision is awaited. The BSB 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 SSDT, are the only other professional disciplinary bodies in the UK which still apply the criminal standard of proof.

The SSDT’s consultation asks:

1. Should the Tribunal apply the civil standard of proof in professional misconduct proceedings?
2. If so, should this be implemented by way of a Tribunal Rule?

Interested parties should respond by 4pm on 21 June 2019. The consultation paper is available here.



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