Standard of Proof
A recent opinion of the Appellate Committee of the House of Lords has gone a long way to clarifying the standard of proof in certain civil proceedings. Lord Hoffmann’s opinion, from which the extracts below have been taken, does not deal specifically with disciplinary proceedings, but its application in that context has already been considered by a Scottish court (see below).
‘If a legal rule requires a fact to be proved (a
"fact in issue"), a judge or jury must decide
whether or not it happened. There is no room for
a finding that it might have happened. The law
operates a binary system in which the only values
are 0 and 1. The fact either happened or it did
not. If the tribunal is left in doubt, the doubt
is resolved by a rule that one party or the other
carries the burden of proof. If the party who
bears the burden of proof fails to discharge it,
a value of 0 is returned and the fact is treated
as not having happened. If he does discharge it,
a value of 1 is returned and the fact is treated
as having happened…
‘Some confusion has however been caused by dicta
which suggest that the standard of proof may vary
with the gravity of the misconduct alleged or
even the seriousness of the consequences for the
person concerned. The cases in which such
statements have been made fall into three
categories. First, there are cases in which the
court has for one purpose classified the
proceedings as civil (for example, for the
purposes of article 6 of the European Convention)
but nevertheless thought that, because of the
serious consequences of the proceedings, the
criminal standard of proof or something like it
should be applied. Secondly, there are cases in
which it has been observed that when some event
is inherently improbable, strong evidence may be
needed to persuade a tribunal that it more
probably happened than not. Thirdly, there are
cases in which judges are simply confused about
whether they are talking about the standard of
proof or about the role of inherent probabilities
in deciding whether the burden of proving a fact
to a given standard has been discharged…
‘Dame Elizabeth Butler-Sloss P restored clarity
and certainty in re U (A Child) (Department
for Education and Skills intervening) [2005]
Fam 134,143-144:
"We understand that in many
applications for care orders counsel are now
submitting that the correct approach to the
standard of proof is to treat the distinction
between criminal and civil standards as 'largely
illusory'. In our judgment this approach is
mistaken. The standard of proof to be applied in
Children Act 1989 cases is the balance of
probabilities and the approach to these difficult
cases was laid down by Lord Nicholls inIn re H
(Minors) (Sexual Abuse: Standard of Proof)
[1996] AC 563. That test has not been varied
nor adjusted by the dicta of Lord Bingham of
Cornhill CJ or Lord Steyn who were considering
applications made under a different statute.
There would appear to be no good reason to leap
across a division, on the one hand, between crime
and preventative measures taken to restrain
defendants for the benefit of the community and,
on the other hand, wholly different
considerations of child protection and child
welfare nor to apply the reasoning in McCann's
case
[2003] 1 AC 787 to public, or indeed to
private, law cases concerning children. The
strict rules of evidence applicable in a criminal
trial which is adversarial in nature is to be
contrasted with the partly inquisitorial approach
of the court dealing with children cases in which
the rules of evidence are considerably relaxed.
In our judgment therefore…the principles set out
by Lord Nicholls should continue to be followed
by the judiciary trying family cases and by
magistrates sitting in the family proceedings
courts."
‘My Lords, I would invite your Lordships fully to
approve these observations. I think that the time
has come to say, once and for all, that there is
only one civil standard of proof and that is
proof that the fact in issue more probably
occurred than not. I do not intend to disapprove
any of the cases in what I have called the first
category, but I agree with the observation of
Lord Steyn in McCann's case (at 812) that
clarity would be greatly enhanced if the courts
said simply that although the proceedings were
civil, the nature of the particular issue
involved made it appropriate to apply the
criminal standard…
‘Finally, I should say something about the notion
of inherent probabilities. Lord Nicholls said, in
the passage I have already quoted, that
"the
court will have in mind as a factor, to whatever
extent is appropriate in the particular case,
that the more serious the allegation the less
likely it is that the event occurred and, hence,
the stronger should be the evidence before the
court concludes that the allegation is
established on the balance of probability."
‘I wish to lay some stress upon the words I have
italicised. Lord Nicholls was not laying down any
rule of law. There is only one rule of law,
namely that the occurrence of the fact in issue
must be proved to have been more probable than
not. Common sense, not law, requires that in
deciding this question, regard should be had, to
whatever extent appropriate, to inherent
probabilities.
B (Children), Re
[2008] UKHL 35.
And see Doherty, Re (Northern Ireland)
[2008] UKHL 33.
The dicta in this case were applied by the Outer
House of the Court of Session in the case of
Chief Constable Of Fife Constabulary, Re
Application for Judicial Review [2008] ScotCS
CSOH_96, wherein it was held in relation to
Police (Conduct) (Scotland) Regulations 1996
that, ‘The position therefore is that the
standard of proof required is proof on a balance
of probabilities, but common sense, not law,
requires that in deciding this question regard
must be had, to whatever extent appropriate, to
inherent probabilities.’
Categories: Chapter 12, Updates