You’re masterful Mr President: Standards of Proof debate takes odd turn

The President of the SDT’s comments on the BSB consultation are highlighted in a story on Legal Futures today

“The SDT will remain the master of its own destiny in this debate. Its membership will do what it believes to be right in a rational, informed, evidence-based manner.

“The SDT will lead on the issue of the standard of proof applied in its proceedings on its own terms and in its own time and will not be distracted by the sometimes ill-informed rhetoric of others.

“The SDT is watching the BSB consultation with interest, recognising that the Bar’s tribunal is a smaller body than the SDT with different issues.”

Like Tony Blair saying this is not a time for soundbites, this President says that this is not a time for rhetoric. Masterful. Never mind that one might wonder how one side can be omnipotent in a debate. Or that the SDT, on current practice, may see itself as more similar to a regulator Vets than the Bar (Vets being the only major profession disciplined to a criminal standard according to the BSB consultation).

I suppose what is meant is that the SDT will decide for itself what its balance of proof should be. This is a curious position because, as I understand, the SDT has previously indicated it is bound by decisions of superior courts on this matter (decisions which Leveson LJ have indicated might need rethinking). But putting that to one side, the comment does throw up an interesting reminder of the unusual position of the SDT in the regulatory structure. It is an independent tribunal, funded by the Law Society but at arm’s length, but it is also subject to supervision by the Legal Services Board.  That supervision is more limited than for the approved regulators. The Board can only direct that the SDT take action where it has failed to perform any of its functions to an adequate standard (or at all) or to comply with any requirement imposed on it by or under this Act (per s. 179 and s. 32 of the Legal Services Act 2007).

However, the SDT is required to get certain rule changes approved by the LSB. The current rules, which are mainly procedural in nature, do not state anything about the balance of proof they apply. It is of course not very impressive that the balance of proof, something which of critical interest to lay complainants and professional respondents, is not in the rules. This must be especially true for a body that has transparency* as one of its three banner values. Yet the SDT has indicated it will be bringing forward rules and will be consulting on the standard of proof. It remains to be seen whether the standard of proof will be in the proposed rules, but even if it is, that is not enough for the LSB to insist that the SDT’s rules are updated in the way the LSB might want. If the SDT decided to stick with the current approach the LSB might decide not to approve the rules, within the constraints imposed by the LSA and public law, forcing the SDT to rethink but the game is then one of regulatory ping-pong. Mastery may not be total on either side. Unless the SDT can avoid putting the standard in rules that need approval they will have to debate the merits of their position with the LSB.

The criticism of rhetorical arguments is also an interesting piece of rhetorical diversion. What are these arguments, and who is making them?** The only argument that I have seen persistently advanced in a sound-bite way is this one: if a profession disciplines to a criminal standard then that profession is failing to discipline professional members that are ‘more likely than not’ unethical or incompetent. That doesn’t strike me as a rhetorical argument. It strikes me as a good argument that needs careful countering if it is not to be conclusive. The barrister Lucy Reed wrote an exceptional blog on this pointing to the special pleading involved in thinking that lawyer’ rights to practice are pre-eminent over the public’s right to be protected.

The SDT’s indicates it is not however up for a debate with the BSB. It’s not because the BSB is too small or has (unspecified) different issues – something it might have been helpful for the BSB to understand. The SDT curiously declines to give a view, or even helpful experiences and evidence that might assist the BSB in making up its mind. This they do on the basis that it might prejudice their handling of future cases saying it:

must have in mind that it should not make public statements (even in the context of consultation) which might give rise to a complaint at a future date from those appearing before it of predetermination and/or apparent bias. The Tribunal is able to respond to a Consultation highlighting difficulties or issues that have been encountered while sitting to determine cases. That is an appropriate function enabling the Tribunal to pass on knowledge and experience to policy makers.

It passes on no such knowledge in the Consultation. The position is difficult to understand, particularly given that it is planning to consult itself: does it plan to suspend the hearing of cases while it cogitates, so as to mitigate the risk? I am imagining the answer is no. And why, if it is impartial, does it need to say the Bar is smaller (indeed, how is that relevant to the balance issue?) and why does it feel the need to speak gnomically of different issues, without acknowledging that the issues faced will also often be very similar? That does not strike me as impartiality so much as laying the ground for special pleading.

Alternatively, is it implying that the evidence that it has or will collect, on which it will found its eventual decision, is based on its own experience only and therefore cannot be of assistance to the BSB? Importantly for the future consultation by the SDT, its experience is based on its current practices, the criminal standard, and not its alternative. How will the SDT get round the myopia of its status quo? Or will they expect other regulators to be willing to engage with them in a way they were not? It is a defensive and troubling statement with more than its fair share of rhetorical silliness. If the SDT is so concerned about asserting its neutrality, independence and ability to decide on something as important as the standard of proof, can it really do so with a membership dominated by legal members (lay members are about a third of the membership) and led by a former President of the Law Society? Getting away from ‘chaps regulating chaps’ was one of the central reasons for having the Legal Services Act. The SDT, with its idea of what constitutes independence, has issued a reminder of times past.

————————–

*If the SDT really wants to be transparent it could a) improve the drafting of its judgments and b) put those judgments online in a fully searchable way.

** I blogged my own short thoughts on the standard of proof here.

 

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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3 Responses to You’re masterful Mr President: Standards of Proof debate takes odd turn

  1. S M, doctoral student at Sussex Law School says:

    Dear Richard,

    I am not sure the standard of proof before the SDT ought to be
    reduced. Many allegations they evaluate are very widely scoped –
    failing to give full and open co-operation with the SRA, for example,
    and there are plenty of strict liability offences such as breaching an
    undertaking. Establishing a broad or strict liability offence was
    probably committed becomes an easier task than proving that someone
    passed a red traffic light. Although the traffic light offence is
    strict liability, it must be proved to the criminal standard. If
    justice ought to be fair and even-handed, why is the state not
    reducing traffic light offences to being proved on a balance of
    probability? I imagine because few motorists are evading justice even
    at the current high threshold of evidence. But, likewise, the majority
    of those put before the SDT are found guilty so why interfere here?
    Presumably, the intention of a reduced standard of proof is to achieve
    an even higher conviction rate. A tribunal that invariably convicts
    those who come before it sounds positively Orwellian.

    Much of what goes before the SDT is essentially criminal conduct, with
    dishonesty often established. Giving prosecutors an easier win, I
    suppose, accords with the current trend for regulatory bodies to be
    seen championing consumer protection instead of their own clubby
    interests. I followed your link to the pinktape blog and I note that
    most professional bodies use the civil standard. Are we absolutely
    sure? (That’s a real question, by the way!). I’ve just now taken a
    look at the rules governing police discipline and yes, they can claim
    in their press releases to require only the civil standard in
    disciplinary hearings. But I see in their 2007 guidance (at 3.81) ‘the
    more serious the consequences for the individual which flow from a
    finding against them, the more persuasive (cogent) the evidence will
    need to be in order to meet that standard.’ I guess not just me read
    that as a direction to use the criminal standard wherever the
    potential penalty might be severe. At least by the time of the 2015
    Guidance it had been necessary to clarify (at 2.275) the ‘balance of
    probabilities is a single unvarying standard’. But I’m not sure it is.
    A whole separate paragraph (2.276) of about 90 words instructs ‘[t]he
    more serious the allegation . . . the more persuasive the evidence
    will need to be . . . This does not mean the standard is higher.’
    Surely, as evidence becomes more persuasive that you have achieved the
    civil threshold, it is starting to pile-up in quantity or quality so
    as to persuade you beyond reasonable doubt? In any event, I think the
    subtlety of the guidance will leave those officers holding the
    hearings applying the clear instruction ‘the more serious . . . the
    more persuasive the evidence’.

    A couple of years ago, as a minor part of a dissertation, I perused
    approximately half a dozen cases of civil recovery under POCA. Civil
    cases, civil standard. Nonetheless, I found plenty of evidence that
    judges were using the criminal standard – saying things such as they
    were absolutely certain, and beyond question, that kind of thing. As
    the consequences facing the accused rise in severity, the evidence
    threshold rises in step. Good old judges! But that needs to be
    enshrined for everyone, so the tribunal can’t apply the easy civil
    test to boot-out those it doesn’t like the look of.

    I’m also not sure that there is equivalence between SDT proceedings
    and child custody proceedings. The child is seized in a civil case to
    the civil standard for its own protection. The parent is not convicted
    or quasi-convicted of anything. Indeed, the harm might come from
    neighbours, teachers, bullies at school, parents making poor care/
    medical decisions – the seizing of the child is not a judgement on the
    parents.

    On quite another point, when are you going to pop down to speak to us
    at Sussex? It would be fabulous to meet you.

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