Panels sitting in the Solicitors Disciplinary Tribunal (SDT) should have a lay majority under a new regime where the civil standard of proof applies, the Solicitors Regulation Authority (SRA) has argued.
The regulator also questioned whether the tribunal should have a rule that prevents solicitors before the tribunal questioning alleged victims directly in harassment cases.
Responding to the SDT’s consultation on lowering the standard of proof from the criminal standard, which also included several other changes to the tribunal’s rules, the SRA pointed that the Legal Services Act 2007 removed the statutory requirement for a solicitor majority on any tribunal panel – only for the SDT to reinstate one in its own rules.
“We believe that this rule should be amended to require a lay majority, supporting public confidence by removing the perception of a structural bias in favour of solicitors.
“This would bring the tribunal in line with many other regulators which use a lay majority – for example, CILEx Regulation, the General Optical Council and the General Social Care Council – as well as others that vary the panel composition depending on member availability.”
Speaking to journalists yesterday, SRA chief executive Paul Philip said the regulator was not suggesting there was evidence of actual bias by having solicitor majorities on panels.
The SRA has been calling for some years for the SDT to adopt the civil standard, in line with its own enforcement work.
The response said the civil standard would “ensure a proper balance between protecting the public and the rights of a solicitor accused of breach of our rules; ensure that action can be taken when, on the balance of probabilities, an individual or firm presents a risk to the public; give the public confidence in the regulatory system and the profession; and deliver a consistent, fair and efficient disciplinary process”.
The SRA argued that the criminal standard of proof put the interests of solicitors ahead of the interests of the public, “with the risk of associated poor outcomes for the users of legal services and a loss of confidence in the profession”.
It added: “The higher burden of proof also creates an incentive for defendants to fight cases, rather than to make early admissions.
“[It] aligns with the criminal process rather than with a public interest risk-based regulatory system. It is important where a defendant faces conviction and imprisonment but has no place in modern regulation.”
Nonetheless, Mr Philip said he did not expect the change to reduce the number of cases actually reaching the tribunal.
What might do this was increasing the SRA’s own ability to fine solicitors more than the current £2,000, but Mr Philip said the Ministry of Justice was too busy to consider changing the law.
The SDT has guidance on special measures for protecting vulnerable witnesses, but the SRA noted that there was a “high level of concern about harassment cases” and that, with the law developing, the tribunal may need to adopt further rules about them.
One of these could be preventing the alleged perpetrator cross-examining an alleged victim personally: “The [General Medical Council] has provided for this but the SDT has not. There are of course implications, such as the need to appoint a representative to conduct the cross-examination.”
The SRA called on the SDT to ditch the rule that requires the tribunal’s permission for the regulator to drop an allegation, saying there was no justification for it.
“The provision also gives the impression that the tribunal in some way supervises the work of the SRA. That is not part of its judicial function. The pursuit of allegations is a matter for the SRA, not the tribunal.”
It called too for a right to make submissions on sanction – as is done in the criminal courts – saying appeals to the High Court on sanction might be rarer if this was allowed.
The SRA also objected to a rule that would give the tribunal broad powers to prohibit the disclosure or publication of specified documents or information, or “any matter likely to lead to the identification of any person whom the tribunal considers should not be identified”.
It said this could have “wide implications” for media reporting. It should be removed and made the subject of a fully considered consultation.
This was one of several provisions that the SRA said were not discussed in the consultation paper and should arguably be subject to consultations of their own.