Lowering the standard of proof in misconduct hearings.

The Bar Standards Board (BSB), the body that regulates barristers in England and Wales, has published a consultation (https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf), inquiring whether there is support for lowering the standard of proof for prosecuting those alleged to have breached misconduct rules. The current criminal standard of proof would be lowered to the civil standard; bringing it in line with other professional regulators.

The Solicitors Regulation Authority (SRA) has also considered adopting the civil standard of proof; following Lord Justice Leveson’s (LJ Leveson) recommendation that the SRA re-consider the benefits of the policy.

In making his recommendation, LJ Leveson had rule that an immigration adviser should be banned from working in the profession after applying the civil standard of proof. The Solicitors Disciplinary Tribunal (SDT) however, working under the higher threshold, decided against a ban. LJ Leveson stated that the approach taken to proceedings at the SDT needed re-evaluation to protect the public.

A Government backed taskforce also made the recommendation, stating that the burden of proof is disproportionate, and it was not acceptable that a professional who is a danger to the public should be able to continue practising. The Law Commission, in relation to medical cases, further reported that it was confident the civil standard was appropriate to best protect the public.

The BSB’s consultation will be useful for us to gauge support from the profession and wider organisations for lowering the standard of proof in prosecutions.


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