BSB Change in Standard of proof
Currently, where a barrister is referred to a Disciplinary Tribunal for professional misconduct and the matter is not disposed of under the Determination by Consent procedure, Regulation E143 of the Disciplinary Tribunals Regulations (Part 5, Section B of the BSB Handbook) requires the Tribunal to apply the criminal standard of proof. In May 2017 the BSB decided to consult on whether this standard of proof used should be amended to the civil standard. Factors which no doubt bore heavily on its mind were judicial comment made in the context of the regulation of solicitors and the inconsistency with nearly all other regulators.
On 24 November 2017 the BSB released a press release announcing that the BSB had decided to amend the standard of proof to the civil standard in respect of, "alleged breaches of the Code occurring after 31 March 2019." The change will still need to be approved by the Legal Services Board but it would be surprising if it were not.
It is unsurprising that the BSB has taken this decision. Whilst it will doubtless be received with some concern by some at the Bar it does seem difficult to justify to the public why the legal profession should have the benefit of the shield of a higher standard of proof when, for example, medical professionals do not. What is, however, worthy of attention is the announced intention to attach the change in standard to the date of the alleged breach of the Code rather than, for example, the date of referral to a Disciplinary Tribunal or the date of the complaint being received by the BSB. One can all too readily foresee problems arising in cases where there are either multiple charges or charges relating to continuing acts that straddle 31 March 2019. How is a Tribunal to approach an evidential plank of the BSB's case that is in dispute that traverses both sides of that changeover date, for example? It would seem in any event undesirable to have to apply a civil standard of proof to one charge or set of charges and a criminal standard of proof to others. Hopefully these are matters that will be considered and addressed in advance of LSB approval.