Andrew Stevenson

This decision amounts to the removal from solicitors of yet another protection against malicious or spurious complaints by clients. The decision is entirely unjustified. Only six years ago the tribunal decided to retain the standard of beyond reasonable doubt. If one were reviewing a protocol or custom from decades ago there might be a justification for saying that times have changed due to, for example, a greater awareness of consumer rights and expectations. That is not the situation here. There has been no change of circumstances since 2019. We are unaware of any case in which there was a miscarriage of justice or unfair outcome because the higher standard of proof was applied. The presumption should therefore be in favour of maintaining the status quo. This decision appears to have been influenced by developments in another jurisdiction (England and Wales). Scotland needs to think independently about its own system.

The tribunal is unquestionably quasi-criminal. One only has to consider the terminology that is used there: “fiscal”, “guilty”, “sentence” “fine” and “prosecution” all denote a criminal forum.

Other tribunals use different language; Employment Tribunals refer to applicants and they do not find anyone guilty of anything. They are not penal. They do not prosecute. They certainly do not impose sentences.

In Campbell v Hamlet 2005 the bench included Lord Hope of Craighead, former lord president of the Court of Session, and Lady Hale, president of the Supreme Court from 2017 to 2020. They had “no doubt” that the criminal standard is appropriate where there are allegations of misconduct against professional people. The views of such eminent judges should be respected.

Although it is essentially criminal in nature the tribunal does not provide the protection of the need for corroboration or the prohibition on hearsay. Proof beyond reasonable doubt was one of the few remaining protections. An invaluable safeguard against incorrect outcomes is gone. It will now be one individual’s word against that of another. The criminal standard gave fair protection to solicitors facing mischievous or spurious allegations. The Law Society of Scotland repeatedly issues statistics showing the ill-effects of the job on the mental wellbeing of solicitors. We ourselves hear often, particularly from younger female practitioners in branch offices, of the stress and upset caused by malicious clients and third parties. The threat of a Scottish Legal Complaints Commission complaint is a constant worry for many practitioners. The job is hazardous enough without there being a higher risk of being found guilty by the SSDT.

We have witnessed a one way street of making solicitors increasingly vulnerable just as the public is becoming increasingly demanding. It is in the nature of the job that many clients are criminal (literally) or unhappy with their lives or experiences. Removing another protection of solicitors will have unwelcome consequences. Solicitor firms are not obliged to act for anyone. We regularly encounter difficult and disgruntled individuals who are legitimately seen as complaints-in-waiting. They are now less likely to obtain legal representation and are liable to act on their own, consuming the time and resources of the courts, regulators, public authorities and others. This is not in the public interest.

Lowering the standard of proof leaves solicitors more exposed to the risks arising from false accusations. This could be, for example, that the solicitor used inappropriate language at a meeting or during a telephone call. There is now far greater justification for recording conversations, having witnesses (such as a staff member) present and taking similar precautions. None of this is conducive to creating a spirit of trust between solicitors and client.

The previous lord president tried to draw an analogy with the Fitness for Judicial Office Tribunal. However, that forum is fundamentally different from the SSDT. It hardly ever sits and when it does it does not have a fiscal, it has an investigating officer and a presenting officer. It does not find judicial office holders guilty or impose sentences. It has no power to prosecute or fine. Instead, it makes decisions and prepares reports which are then sent to the first minister or other third parties. It is part of a larger process. It operates according to rules in an Act of Sederunt from 2015 which refers to primary legislation from 2008 and 2014. All of this was known and available to be taken into account insofar as relevant when the SSDT decided in December 2019 to retain the standard of beyond reasonable doubt. No facts have changed since then. This decision is deeply regrettable.