Civil evidence

Criminal conduct - Life prisoners - Northern Ireland - Standard of proof.

Charles Flint QC, Sarah McCann (instructed by the in-house solicitor) for the appellant; Anthony Speaight QC, Kate Livesey for the respondent.

In re D: HL (NI) (Lords Bingham, Scott of Foscote, Carswell, Brown of Eaton-under-Heywood, Neuberger of Abbotsbury): 11 June 2008.

The appellant Life Sentence Review Commissioners appealed against a decision of the Northern Ireland Court of Appeal, allowing an appeal by the respondent life prisoner (D) and quashing the commissioners’ decision declining to recommend D’s release.

D, who had been convicted of ­murder, was released on licence in 1996. In 1997, his niece made allegations against him of buggery, indecent assault and gross indecency.

His licence was revoked. Further ­allegations were made against him by another niece and charges were brought against him in respect of the first complaint. The charges were later withdrawn.

In 2001, the commissioners reviewed D’s case, and were satisfied on the balance of probabilities that D had sexually abused both ­victims. The commissioners held that he should not be released at that stage because there was a significant risk of him committing serious harm.

D sought judicial review of that decision, arguing that the ­commissioners had erred in failing to apply a higher standard of proof of the facts than the balance of probabilities.

That application was refused, but the Court of Appeal went on to hold that the commissioners had applied the wrong standard of proof and their decision had to be quashed. It held that the commissioners should have recognised that the offences alleged against D called for ‘a flexible approach to the civil standard of proof’, requiring ‘more cogent evidence than would be conventionally required’ and a ‘more compelling quality of evidence’. The commissioners argued that the Court of Appeal had misunderstood the ­principles applying to the standard of proof.

Held: (1) Only two standards were recognised by the common law: proof on the balance of probabilities and proof beyond reasonable doubt. The former was the general standard ­applicable to most civil proceedings, and was satisfied if the court ­considered that the occurrence of the event was more likely than not, H (Minors) (Sexual Abuse: Standard of Proof), Re (1996) AC 563 HL followed.

Any confusion which had crept into the application of that principle appeared to come from statements made in a number of earlier cases, which may have been misunderstood and had not always been applied ­correctly. Any misunderstanding should have been put to rest by the remarks of Lord Nicholls in H (Minors).

Further clarification was provided by Lord Hoffmann in Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153 and in R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, where Lord Justice Richards stated that although there was a ­single civil standard of proof, it was flexible in its application, and the more serious the allegation or the more serious the consequences if the ­allegation was proved, the stronger must be the evidence before a court would find the allegation proved on the balance of probabilities, R. (app’n of N) approved and Rehman applied.

Situations where a court or tribunal might have to look at the facts more critically or more anxiously than in ­others before it could be satisfied to the requisite standard might be the inherent unlikelihood of the ­occurrence taking place, the ­seriousness of the allegation, or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact.

Those were all matters of ordinary experience, ­requiring the application of good sense by the court or tribunal: they did not require a different standard of proof or a specially cogent standard of ­evidence. The appeal court had erred in finding that the commissioners had failed to adopt and apply the correct test. The evidence against D was clear and cogent, and pointed very strongly to the conclusion reached by the ­commissioners.

(2) (Per Lord Brown) Counsel in the case of R. (app’n of N) had submitted that there would be cases where proof of an allegation might have serious consequences, even though it could not be said that the matter alleged was inherently improbable. The court accepted that submission and held that the more serious the ­consequences, the stronger the ­evidence required in practice to prove the matter on the balance of ­probabilities. That conclusion was ­troubling.

If the evidence satisfied a tribunal charged with deciding ­questions on the balance of ­probabilities that an allegation made against the individual was more likely than not to be true, notwithstanding whatever unlikelihood there might be in him acting as alleged given the ­serious adverse consequences which were likely to result, then it would be quite wrong for the tribunal to decide the question in the individual’s favour merely to save him from the serious consequences of a finding against him.

Appeal allowed.

John Larkin QC, Donal Sayers (instructed by Field Fisher Waterhouse) for the appellants; Gerald Simpson QC, Desmond Hutton (instructed by Madden & Finucane) for the ­respondents; Paul Maguire QC, David Scoffield for the interveners.