Two Standards of Proof in English Law - Case Study Example

There are more than two standards of proof in English Law.” The traditional view under the English Law is that there are two standards of proof, ly the civil standard which proof on the balance of probabilities and the criminal standard which proof beyond reasonable doubt.1 There are however instances wherein neither these standards of proof are applied in a particular case. Although the English law was said to have “declined to set a third standard,” in a number of cases, it has often applied “the criminal one in non-criminal cases” or “an intermediate standard/s.”2 This article thus aims to present some of the case statutes which did not use the traditional civil standard and the criminal standard. Case Statutes A very significant case is the idea primarily proposed by Lord Denning over 30 years ago in Bater v. Bater, [1951] P. 35, in that “the civil standard of proof is flexible and in each case depends upon the gravity of the issues and/or consequences of the decision.” Bater v. Bater is a case about a wife who has petitioned for divorce and also alleged in its petition, cruelty.3 Lord Denning in this case explained that although a higher standard is required in criminal cases than in civil cases, this however “is subject to the qualification that there is no absolute standard in either case.”4 He added that, “in criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard.”5 He further explained that although in civil cases preponderance of probability is used, there may however be “degrees of probability within that standard, which would depend on the subject-matter.”6 He explained that when the charge of fraud is considered in a civil court, this would then require “a higher degree of probability than that which it would require when asking if negligence is established.”7 Although a charge is of criminal nature, it however, does not take up such high a degree as that in criminal court.8 He explained that it still requires “a degree of probability which is commensurate with the occasion.”9 Lord Denning thus states that “a divorce court should require a degree of probability which is proportionate to the subject-matter.”10 Khawaja v. Secretary of State for the Home Department [1983] 1 All E.R. 765 at p. 783 (H.L.) espouses such an idea in Bater v. Bater.11 The “gradations in the civil standard of proof” was also applied.12 In this case, the Home Office supposed that the applicants got hold of their permission to enter the United Kingdom through deception or fraud and if the application for judicial review was dismissed then, it would mean that the applicants would lose their liberty with a possibility of removal from the United Kingdom.13 The House also took into account that “the Home Office had to establish that the applicants were illegal entrants to ‘a high degree of probability.’”14 In this case the House held that the applicants must “show that they had been given leave to enter the United Kingdom.”15 The authorities also had “to prove that they had entered unlawfully.”16 In assessing the case, the standard of proof imposed on the Government” was much higher than “what the applicants had to satisfy.”17 The House explained that, “As cases such as those in the present appeals involve grave issues of personal liberty, the degree of probability required will be high.”18 Lord Denning’s ideas were accepted in applying the civil standard flexibility.19 In the case of R. v. Birmingham Juvenile Court, ex parte N (An Infant), the same “high standard of proof was also imposed by the Divisional Court in determining “an application to remove a child from its natural parents into the care of a local authority.”20 There is resistance to a decision which, will bastardise a child absent any strong evidentiary support.21 In Moore v. General Dental Council, findings of professional misconduct are discouraged if there is the absence of strong proof.22 In this case, a person’s livelihood is threatened, “proof beyond reasonable doubt or something very similar is often, but not always, required.”23 In this case, Lord Hodson explained that “a higher standard of proof than a mere balance of probabilities was called for.”24 No specification as to what should be the appropriate standard was made.25 In the case of In Re the Estate of Fuld, decd (No. 3 ) [1968] P. 675 at p. 686, Scarman J., in explaining “the standard to which the abandonment of a domicile of origin must be proved” stated that: “The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court … must be satisfied by the evidence. The weight to be attached to the evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear--first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.” In the case of Hornal v. Neuberger Products Ltd., the issue was whether the defendant had behaved fraudulently or not.26 The Court of Appeal held that “where penal conduct is alleged in a civil dispute it is not necessary to prove this beyond reasonable doubt.”27 Lord Denning L.J. however, explained that “the more serious the allegation the higher the degree of probability that is required, but it need not, in a civil case, reach the very high standard required by the criminal law.”28 In Blyth v. Blyth [1966] AC 643, the issue involved in finding out the standard of proof that may be applied to the “question whether adultery had been condoned.” The House of Lords held that “like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter.”29 It explained that “in proportion as the offence is grave, so ought the proof to be clear, as in this case where bars to divorce are concerned, like connivance or condonation, the petitioner need only show that on balance of probability he did not connive or condone as the case may be.”30 In In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, it held that “the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.” In the case of In re Dellows Will Trusts [1964] 1 WLR 451, 455, Thomas J expressed that “the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.” In these cases, the balance of probability standard can take into consideration that a court “should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”31 In the decision, it explained that in the determination of the standard of proof, “the law seeks to define the degree of probability appropriate for different types of proceedings.”32 It explained that it is a difficult scenario “if the balance of probability standard were departed from, and a third standard were substituted in civil cases,” hence, necessary to identify the standard which applies.33 For instance if the “standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, it suggested that “the only alternative is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences.”34 In B v. Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, involves an application to the magistrates’ court for a sex offender order under section 2 of the Crime and Disorder Act 1998, Lord Bingham CJ, stated that “It should, however, be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case.” He explained that, “the civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters.”35 It went on in stating that, “In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.”36 In Gough v. Chief Constable of the Derbyshire Constabulary [2002] QB 1213, the issue involves the application to a magistrates’ court for a banning order under section 14B of the Football Spectators Act 1989 where the Court of Appeal held that proceedings “were civil in character” (2002). Lord Philips MR explained the standard of proof, in the following, “It does not follow from this that a mere balance of probabilities suffices to justify the making of an order. Banning orders under section 14B fall into the same category as antisocial behaviour orders and sex offender orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard.”37 Thus it is important in this case that a restriction be imposed affecting a fundamental freedom which must be strictly demonstrated.38 The Court in this case held that it must be proven that “the respondent has caused or contributed to violence or disorder in the United Kingdom or elsewhere and that the court must be ‘satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches.’”39 Reasonable grounds would constitute evidence of past conduct.40 Such “conduct must be such as to make it reasonable to conclude that if the respondent is not made subject to a banning order he is likely to contribute to football violence or disorder in the future.”41 The Court further held that “the past conduct may or may not consist of or include the causing or contributing to violence or disorder that has to be proved under section 14B(4)(a), for that violence or disorder is not required to be football related.”42 It cited that the proof must be of “the same strict standard of proof” and such conduct “gives rise to the likelihood that, if the respondent is not banned from attending prescribed football matches, he will attend such matches, or the environs of them, and take part in violence or disorder.”43 In conclusion, the Court held that “those requirements, if properly applied in the manner described above, will provide a satisfactory threshold for the making of a banning order.”44 The decision made by the Court of Appeal in R (McCann) v. Manchester Crown Court [2003] 1 AC 787 concerning an application to the magistrates’ court for anti-social behaviour orders under section 1 of the Crime and Disorder Act 1998 again held that although the proceedings are civil in nature, “the standard of proof to be applied to allegations about the defendants’ past behaviour was the criminal standard.” Lord Steyn explained that although the balance of probabilities should apply, because of seriousness of the matters involved, a heightened civil standard would usually be necessary.45 This was also the view taken by the Court of Session in Constanda v. M 1997 SC 217 in deciding the that the “proof to the criminal standard was required in allegations which involved a child who engaged in criminal conduct although the ground of referral to a children’s hearing was not that he had committed an offence but that he was exposed to moral danger.” There is also an increasing opinion that, in cases involving a banning order or a sex offender order is to be made out, the Court should consider “the seriousness of the matters to be proved and the implications of proving them.”46 In Privy Council in Campbell v. Hamlet [2005] UKPC 19, the case involves a finding of professional misconduct by an attorney and was appealed among others, on the ground of the correct standard of proof to apply to such proceedings. Lord Brown explained that “the criminal standard was the correct standard, but there is flexibility in the civil standard of proof which allows it to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters.” He then referred to cases such as “B v. Chief Constable of Avon and Somerset Constabulary, Gough v. Chief Constable of the Derbyshire Constabulary and R (McCann) v. Crown Court at Manchester” wherein “the civil standard of proof would for all practical purposes be indistinguishable from the criminal standard.”47 Other cases involve for instance, the “commitment for civil contempt of court (Re Bramblevale Ltd [1970] Ch. 128 CA) and binding over (Percy v DPP [1995] 1 W.L.R. 1382 DC)” wherein the proceedings are considered to be closely connected to “truly criminal ones that a distinction seems not worth making, but, in others, for example antisocial behaviour orders” (R. (on the application of McCann) v Manchester Crown Court [2002] UKHL 39; [2003] 1 A.C. 787), the law simply reflects a policy choice of the higher standard as the right one.”48 In R (N) v Mental Health Review Tribunal [2006] QB 468, it held that “although there is a single standard of proof on the balance of probabilities, it is flexible in its application.” It explained that if there is a “more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before the court will find the allegation proved on the balance of probabilities.”49 Thus, the standard can be flexible depending not in the “adjustment to the degree of probability required for an allegation to be proved” but “on the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”50 Authors, Cross and Tapper propose that it is “not difficult to find support for the view that English law recognises standards other than those of proof beyond reasonable doubt and on a balance of probabilities.”51 They explained that there are instances where a case “must be proved to a higher degree of probability than the balance of probabilities.”52 They gave examples such as “professional misconduct, rebuttal of the presumption of formal validity of marriage, intention to change domicile” where the standard of proof where not a mere civil standard involving grave cases was applied.53 Given these cases, indeed there are more than two standards of proof under the English law other than civil and criminal standards. Bibliography Anthony Donovan Beckett v. Secretary of State for the Home Department, [2008] EWHC 2002 (Admin). B v. Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340. Bater v. Bater, [1951] P. 35. Blyth v. Blyth [1966] AC 643. Cf. Rejfek v. McElroy (1965) 112 C.L.R. 517 at p. 521 (H.C.). Constanda v. M 1997 SC 217. Court of Appeal in R (McCann) v. Manchester Crown Court [2003] 1 AC 787. Cross on Evidence (6th ed., ed. C. Tapper, London, 1985) at p. 149. Gough v. Chief Constable of the Derbyshire Constabulary [2002] QB 1213. Hornal v. Neuberger Products Ltd. [1957] 1 Q.B. 247 at p. 258. In Re the Estate of Fuld, decd (No. 3 ) [1968] P. 675 at p. 686. In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. In re Dellows Will Trusts [1964] 1 WLR 451, 455. Khawaja v. Secretary of State for the Home Department [1983] 1 All E.R. 765 at p. 783 (H.L.) P Mirfield, How many standards of proof are there? Law Quarterly Review, 2009, 125(Jan), 31-38. Moore v. General Dental Council, 1964] 108 S.J. 1011 (P.C.). R Pattenden, Civil Evidence, Civil Justice Quarterly, 1988, 7(Jul), 220-233. Privy Council in Campbell v. Hamlet [2005] UKPC 19. R. v Manchester Crown Court [2002] UKHL 39; [2003] 1 A.C. 787 Re Bramblevale Ltd [1970] Ch. 128 CA. Re Snowden, Smith v. Spourage [1979] 2 All E.R. 172 at p. 177. R (N) v Mental Health Review Tribunal [2006] QB 468. Roberts & Co. Ltd. v. Leicestershire C.C. [1961] 2 All E.R. 545 at p. 552 Thomas Bates & Son v. Wyndhams Ltd. [1981] 1 All E.R. 1077 at p. 1085. Read More