Lioness or Alsatian?

Does the standard of proof of a fact change according to the seriousness of its consequences?

The common law recognises only two standards of proof: the balance of probabilities, and beyond reasonable doubt. Lord Carswell made this observation yesterday in In re Doherty [2008] UKHL 33 (11 June 2008) at para 23.

The standard of proof on the balance of probabilities does not vary according to the gravity of the issue: obviously, where something is inherently unlikely, it will be more difficult to establish on the balance of probabilities that it happened, but the standard is the same as for all cases where that standard of proof applies. Lord Carswell, with whom all the other Law Lords agreed, cited at para 26 Lord Hoffmann’s “lion or Alsatian” illustration in para 55 of Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153:

“I turn next to the commission’s views on the standard of proof. By way of preliminary I feel bound to say that I think that a ‘high civil balance of probabilities’ is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”

The standard of proof referred to in Doherty concerned an allegation of offending that had been made about a person who had been sentenced to life imprisonment where the ultimate issue was whether it was consistent with the safety of the community that he again be released on parole. The House of Lords held that the tribunal, the Life Sentence Review Commissioners, had correctly applied the standard of proof on the balance of probabilities to this issue.

Lord Brown, agreeing with Lord Carswell, added that it was appropriate to highlight a difficulty concerning the relevance of the consequences for a party if the issue was proved against him: this should not be relevant to whether the standard of proof had been met. The only relevant consideration was the inherent probability of the fact in issue. He recognised however, para 48, that there are some dicta that suggest otherwise, particularly B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, per Lord Bingham as LCJ at para 41, and that hold that where the issue has serious consequences for the party adversely affected, the civil standard of proof becomes almost indistinguishable from the criminal standard. As to this, Lord Brown observed:

“ … I question whether it would not have been more logical and appropriate to have decided that the making of the various orders calls for the criminal standard of proof to be satisfied in the first place. Certainly, once it became established, as finally it was in In re H, that there is no such thing as an intermediate standard of proof, logic surely demanded that one standard or the other be applied and common sense dictates the rest.”

Lord Neuberger agreed with Lord Carswell and also with Lord Brown, so this point has the authority of at least two of the Law Lords in In re Doherty; the others (including Lord Bingham) did not mention it.

Clarification of the fixed nature of the standards of proof does not clear up confusion about when a standard of proof applies. Questions of admissibility of evidence depend on the existence of facts, and it is not always clear whether a standard of proof of those facts applies. In Jiang v R (blogged here 5 July 2007) the New Zealand Supreme Court held that admission of evidence pursuant to the co-conspirators’ exception (also known as the preconcert exception) to the rule excluding hearsay requires “reasonable evidence” of the existence of the common enterprise and the participation of the relevant accused person in it. How does “reasonable evidence” compare with the “balance of probabilities”: is it a higher or a lower standard? Is it a third standard of proof?

And when does any standard of proof apply? Some decisions are described as matters of judgment not amenable to any particular standard of proof. Balancing exercises commonly occur when the court has to compare the probative value of evidence against its illegitimately prejudicial effect, and no particular standard of “proof” seems to apply to that exercise. Even recently established statutory schemes can be vague: for example the exclusion of improperly obtained evidence can occur if the impropriety is proved on the balance of probabilities and then if the court determines (no standard specified) that exclusion would be a proportionate response to the impropriety: s 30 Evidence Act 2006[NZ].

Some people think it is inappropriate to apply a standard of proof to anything other than a determination of fact. Many decisions are matters of judgment, about which all it can be said is that the court must be “satisfied”. The Jiang approach is not saved by this, because there the preconditions for admissibility are matters of fact, but one can more readily see that in balancing probative value against prejudicial effect the court is exercising its judgment. It will decide, for example, that the probative value of the evidence does outweigh the risk of improper prejudice that would arise from its admission. The trouble is, one can always ask, how sure of that are you?

In In re B (Children) [2008] UKHL 35 (11 June 2008) issues that overlapped those in In re Doherty were considered. Lord Hoffmann made it clear, para 2, that sometimes a legal rule requires a fact to be proved. Such a fact is called a fact in issue. Here, it was necessary to decide whether a child was “likely to suffer significant harm”, and this, as Baroness Hale (with whom all the other judges agreed) said, at para 22, is a prediction from existing facts. The issue was, to what standard did those existing facts have to be proved? These were, as Lord Hoffmann described them, facts in issue. The question was, what was the standard of proof of them “that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen” (para 4). It was the balance of probabilities; there is only one civil standard of proof (para 13).

Lord Hoffmann carefully described the confusion that has occurred in the cases, and Lord Rodger and Lord Walker expressed their agreement (and also agreed with Baroness Hale). Essentially the confusion has concerned what Lord Nicholls meant in In re H (above) when he referred to heightened probabilities being required for proof of unlikely facts. Lord Hoffmann explained (para 12) that Lord Nicholls did not mean that where a serious allegation is in issue the standard of proof required is higher, notwithstanding that in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 Lord Steyn appears to have thought he did.

Baroness Hale laid to rest the misconception about what Lord Nichols had meant (para 64):

“My Lords, … Lord Nicholls’ nuanced explanation left room for the nostrum, “the more serious the allegation, the more cogent the evidence needed to prove it”, to take hold and be repeated time and time again in fact-finding hearings in care proceedings …. It is time for us to loosen its grip and give it its quietus.”

And concluded (para 70):

“… the standard of proof in finding the facts necessary to establish the threshold under [the relevant legislation here] is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

While the composition of the Appellate Committees in the two cases decided yesterday was different, with only Lord Scott being on both, there was obviously some discussion in the tea room. Lord Carswell’s assertion that the standard of balance of probabilities is finite and unvarying (in In re Doherty, para 28) is in harmony with Lord Hoffmann’s assertion that there is only one civil standard (In re B (Children) at para 13) and with Baroness Hale’s rejection of the idea that this standard can shift according to seriousness of the either the allegation or the consequences. In both cases there is support for the application of the criminal standard of proof in civil cases where the consequences of the finding of the fact in issue are particularly serious, but that would not be achieved by altering the level of proof required to satisfy the civil standard, and these cases did not call for application of the criminal standard.

The ECtHR has rejected the idea that stronger evidence is required to meet a specific standard of proof where the issue is serious: Saadi v Italy [2008] ECtHR 179 at 140.

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