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Civil standard of proof set to be adopted for professional misconduct proceedings for barristers

Following a public consultation earlier this year, the Bar Standards Board (BSB) has decided to change the standard of proof applied when barristers, and others regulated by the BSB, face disciplinary proceedings for professional misconduct. Subject to approval from the Legal Services Board (LSB), the standard of proof will change from the criminal standard (“beyond reasonable doubt”) to the civil standard (“on the balance of probabilities”). The change will bring the Bar’s disciplinary arrangements in line with most other professions.

The change to the standard of proof will require the approval of the LSB and a period of preparation for the BSB and the Bar Tribunals and Adjudication Service. The BSB therefore proposes to apply the civil standard to alleged breaches of the Code occurring after 31 March 2019.

Chair of the Bar Standards Board, Sir Andrew Burns KCMG said: “We would like to thank all of those who responded to our consultation about the appropriate standard of proof for barristers’ disciplinary arrangements. If this change is approved by the LSB, it will be an important step forward in the BSB’s ongoing work to modernise the regulation of the Bar in the public interest”.

Director of Professional Conduct, Sara Jagger said: “The revised standard will complement other changes that we have made recently to improve our rules and processes, including 
the new disciplinary tribunal regulations
that came into force on 1 November. All of these changes should give confidence to the public, and to any barrister who is the subject of a complaint, that our arrangements are robust, thorough and fair to all concerned.”

More about where the revised standard of proof will be applied

As well as being applied by disciplinary tribunals, the revised standard of proof will also be applied by the BSB’s Professional Conduct Committee when following the “Determination by Consent”

About the consultation responses

The consultation received 101 responses. The majority of responses were from individuals and opposed a change. The Criminal Bar Association also opposed a change but included in its response
a minority view in favour. The Bar Council and the Commercial Bar Association indicated that their members were evenly split as to whether there should be a change to the civil standard and this
division was also reflected in the responses from the Inns with one Inn supporting a change, one arguing against and one urging its members to respond as individuals acknowledging that opinions were divided. The fourth Inn did not respond. Other regulators and the Legal Services Consumer Panel supported a change to the civil standard.

About the Bar Standards Board

Our mission is to regulate barristers and specialised legal services businesses in England and Wales in the public interest. Our statutory regulatory objectives are laid down in the Legal
Services Act. They include protecting and promoting the public interest and the interests of consumers.

For more information about what we do visit: