Friday, July 25, 2008

Proof and consequences

Cynical barristers – few though they may be – probably think that judges fudge the standard of proof so that they can decide issues as they wish.

The European Court of Human Rights appears to take a hard line against such fudging: in Saadi v Italy [2008] ECHR 179 (noted in blog for In re B, 12 June 2008) the Grand Chamber rejected an argument that consequences should influence the strength of the evidence required on an issue the court had to decide (para 140, 142). That was in the context of the consequences of allowing a person to remain in Italy (allegedly he was a risk to public safety, especially in the United Kingdom, which intervened in these proceedings) as against the risk that if extradited he would be subject to breach of his absolute right not to be subjected to inhumane treatment (a risk he alleged would arise in Tunisia). The United Kingdom argued that because of the risk he posed to public safety, Mr Saadi should have to adduce stronger evidence than would otherwise be required of the risk to him of ill-treatment. But this (para 140)

“…amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court … sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3 …”

Mr Saadi did not have to go so far as proving on the balance of probabilities that he faced ill-treatment in Tunisia: it was sufficient for him to show “substantial grounds for believing there is a real risk” of such a breach of Art 3. And the risk he might pose to the safety of people in the UK had nothing to do with the likelihood of his being subjected to ill treatment if extradited to Tunisia (139):

“... Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test.”

However, the consequences of the decision (risk of ill-treatment) do make the court sit up and pay attention:

“142 … the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof …”

I mention all this because today it looks as though consequences are permitted to affect the strength of evidence that is required to meet a fixed standard of proof: Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008).

Here Supreme Court decided that the criminal standard of proof does not apply to disciplinary proceedings, but that the standard of proof is the civil standard, the balance of probabilities (the sole dissenter on this point was Elias CJ). That aspect of the decision is not particularly surprising, although it was certainly not inevitable. The point of interest here is whether stronger evidence is needed to meet the civil standard when criminal misconduct is alleged.

Saadi v Italy was not cited, but In re B (blogged here 12 June 2008) was. Sharma v DPP (Trinidad and Tobago) (blogged here 11 December 2006) was not.

The majority of the Court, in a joint judgment (Blanchard, Tipping and McGrath JJ) with which Anderson J largely agreed, recognised that the standard – the balance of probabilities – does not change, but that the nature and consequences of the facts to be proved are relevant to the assessment of the evidence. The the standard of proof on the balance of probabilities is accordingly described as flexible. This follows (para 98) Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362 and purports to follow (at para 105) Baroness Hale in re B at 63 and 64. She, you will recall (blog 12 June 2008), administered the quietus to a misunderstanding of what Lord Nicholls had meant in an oft-quoted dictum. And yet, the joint judgment in Z adds, para 114:

“It is sometimes suggested that the law could, at the discretion of the relevant tribunal, require the criminal standard, but only in respect of the most serious of allegations in disciplinary proceedings, being those which would also found serious criminal charges…. Little guidance has been given, however, on when it will be appropriate to require the criminal standard. No coherent principles have been suggested. Conversely, the flexible approach avoids the difficulties of having different standards in the same type of proceeding and having to decide where to draw the line…. In this respect, the flexibly applied civil standard is not only a more straightforward one to apply to disciplinary proceedings. It is also a standard which has conceptual integrity.” [footnotes omitted]

This appears to make the balance of probabilities perform the function of proof beyond reasonable doubt where the consequences warrant that. In place of the uncertainty over when the criminal standard should apply, the majority substitute uncertainty over when consequences will be deemed sufficiently serious to trigger flexibility. The joint judgment purports to deny that requiring stronger evidence in some situations is a matter of law (para 105), whatever that means; are submissions prohibited as to the implications of the seriousness of the consequences for the strength of evidence needed in a given case?

It is tempting to view the majority decision in Z as a choice of the wrong standard of proof for disciplinary tribunals. Generally, it is unpleasant to think of judges as being distracted by the consequences of a decision when they determine whether evidence is sufficiently strong to meet the burden of proof. For example, it would be wrong for a judge to bear in mind that the consequence of finding that the defendant’s rights had been breached could be exclusion of important evidence against him, when deciding whether there had been such a breach.

Anderson J applied a logical approach in largely agreeing with the joint judgment. He criticised (para 143) the Chief Justice’s dissent:

“I have difficulty with the Chief Justice’s proposition that consistency is promoted by applying the criminal standard. It is not the choice of standard which promotes consistency but the consistent application of the same standard, whatever it might be.”

But will regard for the consequences of a decision promote consistency? Why wouldn’t uniform application of the criminal standard to disciplinary proceedings promote consistency? Anderson J says (145) that the choice of the civil standard is supported by the community risks relevant to professional misconduct, but serious crime can also involve community risk – often of a greater degree – yet no one suggests that in such cases the civil standard should apply. True, as the joint judgment points out at 117, some other jurisdictions use the civil standard in disciplinary proceedings, although in the UK it is likely that the criminal standard will apply to such proceedings concerning barristers (110), and perhaps to health professionals (111). The joint judgment preference is for experience over logic (107).

The weakness of the majority's analysis in Z arises from a misuse of the word "flexible". This is more appropriately descriptive of the ease or difficulty with which evidence on an issue might be obtained. It is not a description of the level or standard of proof needed to satisfy the court on the issue. The House of Lords has corrected its over-analysis of the balance of probabilities, and the Strasbourg Court has refrained from embarking on such a discussion, so Elias CJ, although being the minority in Z, is in good company.

A different aspect of Z concerns abuse of process and whether matters that had been the subject of criminal charges on which the defendant was acquitted could be considered subsequently by a disciplinary tribunal. They could, although Anderson J disagreed as to one of the incidents. He, with the majority, saw no difficulty in tribunals having regard to such matters, because of the different context of their proceedings (156), but on the one matter on which they differed the majority (134-136) pointed to jurisdictional reasons for preventing the tribunal from considering it.

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