The Bar Standards Board (BSB) has opened the way to replace the criminal standard of proof in disciplinary matters with the civil standard, in a move that could well ripple across the profession amid growing pressure to adopt the civil standard uniformly.
The change would apply both to the BSB’s own decisions and to the Bar disciplinary tribunals.
Without explicitly backing the move, the regulator said in a consultation launched yesterday that barristers were “out of step” with most other professions.
Noting that the Solicitors Regulation Authority (SRA) has now moved to the civil standard for its decisions, although the Solicitors Disciplinary Tribunal (SDT) has not, the BSB said: “Almost every other professional regulator, except for the veterinary surgeons, now applies the civil standard of proof to professional misconduct allegations.
“This suggests that the BSB is out of step with the large majority of the professional regulatory community.
“It also begs the question as to why barristers, and in some circumstances solicitors as discussed, should be accorded what might appear to be preferential treatment as compared to other professions practising in the England and Wales.”
The SRA is keen for the SDT to change to the civil standard – which it opposes – but was backed last year by the Insurance Fraud Taskforce, with a recommendation that has been accepted by the government but not yet acted upon.
The BSB said the “prevailing view” among both legal and non-legal professions was that the civil standard was the “appropriate” one, and the Legal Services Board recommended that all legal regulators adopt it back in 2014.
Before that, in 2011, the BSB said it had convened a working group to consider the issue, but the group was divided as to what to recommend to the regulator’s board.
“At that stage, the board was of the view that the civil standard appeared to be more appropriate than the criminal standard but it was not prepared to make a unilateral move to change the standard of proof unless the SDT was also minded to do the same.”
The BSB referred to comments by judges at the High Court last year that it was time to consider lowering the burden of proof at the SDT.
The regulator said their obiter dicta in that ruling had given an “indication of travel”, with Mr Justice Leggatt saying the “climate and approach to professional regulation and discipline have changed” and Sir Brian Leveson that there should be a “re-evaluation of the approach”.
Following the ruling, the BSB said its board revisited the issue, and remained of the view that the civil standard of proof was “probably more appropriate in the public interest”, but no decision could be made without seeking the views of the public.