Sauce for the goose and the standard of proof

Scales by Hittie Evie on Flickr (creative commons) - thanks!

Ooh. That rhymes. Anyway…

The Bar Standards Board (regulators for barristers) are conducting a consultation on whether or not the standard of proof for disciplining barristers should be the criminal standard (as it now is) or should change to the lower civil standard.

First, a recap : the criminal standard means that, just as in a criminal trial, a thing isn’t proved unless the judge (or jury) is satisfied so that it is sure (or beyond reasonable doubt) that the crime has been committed. The civil standard means that a thing is proved if the judge thinks it is more likely than not (i.e. 51% or over) that the thing in question happened.

My initial response was – “Hell no! Leave it as it is. This is our careers we’re talking about, people. V important.” Plus, thought I, all the other professions use the criminal standard, so its a no brainer.

Except, apparently, whilst I wasn’t looking almost all the other regulators have gone over to the civil standard, the sneaky rats. It’s just us and the vets appaz, out there on a limb with our “beyond reasonable doubt”. Getting away with badness and thumbing our noses at the regulators if they can’t prove a thing to the criminal standard. Or, quite rightly being found innocent of a bogus charge because there is insufficient evidence – depending on your perspective.

The consultation document is actually quite an interesting read and thoughtfully and accessibly put together. It is quite persuasive, and sets out the shift in mood /expectation about this over the years by both regulators and by judges who have considered the issue (although it has not directly been determined). You can read it here.

But what took me to the consultation document was not a burning desire to learn about the caselaw and history of standards of proof in regulatory tribunals (though goodness knows it is practically all I ever dream about*) – I went to read it because I wanted to write this post, and thought I’d better make sure I knew what I was on about. I didn’t as it happens (proof, if you needed it, that blogging is good for continuing professional development).

What had driven me to write this post was not a comparison with other professionals, but the jarring in my own head of my “Hell no!” reaction with the conversation often had on this and other family law blogs (and with afeared clients) about the appropriateness of the civil standard in family proceedings concerning children, particularly those involving adoption.

There are many who would argue (and have argued repeatedly on this blog) that it is wrong that the law allows the removal of children from their family forever when they have been convicted of nothing, and when it has not been proved beyond reasonable doubt that their parenting is harmful or risky. Those are respectable arguments, but they don’t in fact represent the law and there are perfectly reasonable arguments in the other direction.

Although I’ve always been ambivalent about it (because one sees the awful consequences when the civil standard DOES lead to injustice), I’ve been able to articulate the very good reasons for the adoption of the civil standard in these cases : there are sound public interest reasons for doing so. Whether or not one is protecting a victim of domestic abuse through injunction or a child at risk of harm the civil standard gives you a better chance of protecting the vulnerable, and as such is justifiable on public interest grounds. It would be awful if child were left in or returned to a dangerous home and subsequently harmed because even though it was more likely than not that a parent had caused harm it couldn’t be proved to the criminal standard. The complexity in family cases comes in where there is a countervailing risk – of depriving a child of his or her family (forever in some cases) – brothers, sisters, parents, aunties, grandparents – when it wasn’t necessary at all.

Of course the lower the standard the greater the risk of injustice to the person “on trial”, and in children cases the greater the risk of wrongful removal. But…

If the public interest in protecting vulnerable children from abuse or neglect by parents means that it is legitimate to “find” parents guilty of abuse even where no criminal charge has been brought, and even where the evidence is likely insufficient to secure a conviction, then it is difficult I think to argue that the public interest in protecting the public from rogue or incompetent barristers should not lead to a similar conclusion in relation to disciplinary proceedings for the bar. It’s my career, but it’s somebody’s child. And there is a limited impact on the public we are protecting if some barristers are wrongly found guilty of misconduct (save insofar as it narrows the pool of good lawyers by one and may put off others from joining or staying in the profession so narrowing the pool further in future).

Though it makes me highly anxious as a professional, I have to acknowledge that if anything the public interest arguments in respect of the civil standard in family courts are stronger than they are in relation to disciplinary proceedings. The BSB consultation paper asks the very good question :

…why [should] barristers, and in some circumstances solicitors… be accorded what might appear to be preferential treatment as compared to other professions practising in the England and Wales?

and makes the very good point :

…it is not necessarily in the public interest for barristers to be able to avoid a disciplinary sanction when it is more likely than not that they are guilty of professional misconduct but a Tribunal cannot be “sure” of this. This position is likely to be perceived by the public as working in the interests of the profession and not in the interests of the public or consumers.

For sure I’d feel better protected against spurious or malicious complaints if the standard were higher, but if its good enough for my clients, and good enough for social workers it’s difficult to say that the bar is somehow special and should be treated differently.

The alternative conclusion of course would be to agree with those who argue for a criminal standard in family cases, and to argue that all the other disciplinary / regulatory bodies have got it wrong. I know the injustice that can be caused in individual cases, but it cuts both ways.

The Webster family suffered a grave injustice – they were exonerated but it was too late for their children to be returned. But Ellie Butler suffered a grave injustice too – findings made on balance of probability that put her away from harm were later overturned at a rehearing and she was subsequently returned into the care of her parents, and was subsequently killed by her father (whose conviction for harming Ellie had been quashed). Even with the civil standard Ellie ended up dead. The criminal standard wouldn’t have saved her. And any trial lawyer knows that even the civil standard is not to be sniffed at – many allegations made in family courts fail for want of sufficiently cogent evidence. Whatever the standard used accuser must prove.

Cases like Ellie’s and the Websters are fortunately rare, but though this is no comfort for those rare cases where the system doesn’t work inevitably no system is perfect. Adoption of the criminal standard would most likely result in more children being exposed to harm than the civil standard does. Neither can prevent all harm and injustice. But my strong, instinctive reaction to the suggest that I, as an individual, might be condemned on a lower standard for the public good is a reminder of how hard this is to come to terms with on an individual level.


*this is not true


Feature pic : Scales by Hittie Evie on Flickr (creative commons) – thanks!

9 thoughts on “Sauce for the goose and the standard of proof

  1. A Social Worker

    I can see why you may be concerned about this but you have nothing to fear. Unless of course you are incompetent, dishonest or ambivalent about your work. As a social worker the standard in terms of our own regulation is civil and rightly so. We need to expect high standards of professionals across the board and my experience as a manager is when there is poor practice, it is tackled and when disciplinary action is needed, it is taken. It is also a fair process and I have not encountered a situation when disciplinary action has been unfair. The consequence of poor practice can be immeasurable and anything that helps transparency and accountability can only be a good thing.

    • Well, I think we probably do have something to fear, but it isn’t just about us is it? I do remain anxious that lawyers are vulnerable to complaints by those who don’t really understand what we do – whether that is our own clients or litigants in person who are aggrieved. But as I concluded in the blog post the public interest trumps personal anxiety. And if we expect our clients to trust in a system that operates on balance of probs we have to trust our regulators to operate a system on balance of probs and submit ourselves to it.

  2. […] The Bar Standards Board is inviting comments on its proposals to bring the standard of proof into line with all professionals other than Vets and, for now, solicitors. Lucy Reed has exceeded her own high standards with an exceptional blog post on this. […]

  3. […] The criticism of rhetorical arguments is also an interesting piece of rhetorical diversion. What are these arguments, and who is making them?** The only argument that I have seen persistently advanced in a sound-bite way is this one: if a profession disciplines to a criminal standard then that profession is failing to discipline professional members that are ‘more likely than not’ unethical or incompetent. That doesn’t strike me as a rhetorical argument. It strikes me as a good argument that needs careful countering if it is not to be conclusive. The barrister Lucy Reed wrote an exceptional blog on this pointing to the special pleading involved in thinking that lawyer’ rights to practice are pre-eminent over the…. […]

  4. A childs medical records either hospital or family doctor are covered by the law of the land, only a police investigation would allow access.
    So where do the social service get their evidence of unexplained injuries from??

    • CB, it is not correct to say only a police investigation would allow access. Medical staff have child protection duties, and that would include notifying the police or Childrens’ Services of any concerns about (say) suspected inflicted injuries. In those circumstances a multi-agency strategy meeting is likely to be held to share information. There is a positive duty to share information for child protection purposes so the usual rules are (to some extent) disapplied.

  5. In Your World, The Pretend World, Cover up the truth, Possibility & Probability World

  6. Your arguments do not sound convincing to me. While it is true that lawyers should not be treated different to other professions, the fact that other professions have chosen a particular standard is not a legal argument. It is merely an authoritative argument. It is not convincing because they might be wrong just as well as us.

    I understand that you argue that a lower standard of proof gives social service a better chance of protecting the vulnerable. If we want to put children first and protect them as good as we can, we ought not to apply a strict standard of proof because of the risk that we cannot prevent a child’s mistreatment due to lack of evidence.

    You are right that each wrong decision may have severe consequences on the child and the parents. However, I would like to stress that a “false positive” decision, where the child is taken away although the parents have done nothing wrong, cannot be seen as a lesser evil. It does not only constitute a severe hardship for the parents, but one for the child as well. A child should have a right to live together with its parents. Depending on the child’s personality, it may have very negative effects on the child’s psyche if it is suddenly taken out of its family and placed into a foster family or an orphanage.

    Lastly, I object to the argument that the standard of proof should be lower because the wellbeing of children is such an important value to society. This kind of argument leads us on a slippery slope. With the same kind of argument we could argue that a murder suspect should be tried on the balance of probability instead of the criminal standard. If we wrongly acquit the murder suspect, (s)he may strike again. If we really want to protect human life, we should imprison him. Nobody in society would object, because, after all, he was more likely to have done it than not. The counter-argument, that the purpose of forced adoption is not to punish anyone, but to protect the child, does not help. You could just as well say that if we cannot convict the murder suspect for his guilt, we should imprison him to protect the victim instead. Obviously, the consequence for the suspect would be the same. There you go, due process.

    Ultimately, the example with the murderer shows another point: Murderers are still convicted in the UK and everywhere else. This illustrates, in my view, that the consequences of applying a higher standard of proof to forced adoptions would not lead to significant higher numbers of abuse.

  7. […] Lucy Reed, family law barrister, on her Pink Tape blog, Sauce for the goose and the standard of proof […]

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