The news release on the website of the SSDT indicates that it is replacing the present criminal standard of proof in professional misconduct cases of “beyond reasonable doubt” with the civil standard of “the balance of probabilities”. The release is remarkably brief.

No reasons are given for the decision. There is no information on the responses of the legal profession to the consultation. The submissions have not been made public nor the details of the vote by SSDT. What was the nature of the debate within SSDT? Was there unanimity or a split vote and if split what was the split? We do not know. It is not transparent.

Rule 41(1) in the 2024 Rules of the Tribunal obliges the tribunal to give reasons for any decision (the news release describes their proposed course of action as a “decision”) and “decision” is defined in Rule 3(1) as including “any decision, order, determination or direction of the tribunal”.

There is no indication also of how this is to be implemented except that they will be “acting to implement the change as soon as practicable”.

An additional rule

The indications appear to be that they believe that this change can be effected by adding a rule to the current 2024 rules stating this new standard. From the wording of the consultation papers it is clear this is their preferred route. No other route has been mentioned. The Solicitors Disciplinary Tribunal in England and Wales implemented the change by an additional rule. Ireland is moving to that standard but there is no mention in news reports so far as to how Ireland intend to effect it. Most other tribunals have now adopted the lower standard.

Such a rule addition, if SSDT were to make a new one, will require the consent of the lord president. It is by no means certain that he will agree a rule change.

We imagine he will want to know all the information about the two consultations of 2019 and 2024 like e.g.:

• Sight of the two consultation documents (no longer on the SSDT website) and all the submissions
• the reasons of SSDT for preferring the pro-change submissions over the submissions of the representative bodies of the profession
• the details of the vote including the arithmetic of the SSDT vote to determine if majority or unanimous and
• what “debate” was there within SSDT before that vote.
• The lord president may pertinently ask whether this information has been disclosed to the profession and why this is not transparent and in conformity with the spirit or letter of its own Rule 41(1) of the 2024 Rules.

These are all things that solicitors in general and SLAS, the Law Society of Scotland and the other representative bodies for solicitors who opposed the change, should already have been told by now.

There is no clarity on transitional provisions of the change to a civil only system. Transition was not consulted upon making it an uncertain and anxious time for solicitors, presently being prosecuted in upcoming trials, and for their legal defence advisers. That should be rectified immediately.

We respectfully call upon the SSDT to provide transparency to comply with its own rule and so provide the reasons for their decision, the details of the vote and debate.