Sheppard v Secretary of State for the Home Department

In a civil claim alleging serious wrongdoing, the standard remains the ordinary balance of probabilities. The seriousness and inherent improbability of an allegation may require cogent evidence, but do not create a heightened standard.

Where a person is injured in State custody, the authorities bear a powerful evidential burden to provide a plausible and substantial positive account. This does not transfer the legal burden of proof to the defendant or create a special rule in domestic tort litigation.

Judicial discourtesy or ill-temper is regrettable but does not establish bias unless the conduct evinces prejudice or disrupts the fair development of the case.

The appellant claimed damages from the Home Office for assault and misfeasance in public office, alleging that prison officers attacked him after his remand to Highdown Prison. The respondent said that he had been lawfully restrained and later inflicted the injuries himself.

The Central London County Court, in a judgment given by His Honour Judge Rich QC on 19 April 2002, dismissed the claim. The appeal concerned the proper approach to injuries sustained in custody, whether the finding of self-inflicted injury was impermissible, and whether the trial judge’s conduct demonstrated bias or denied a fair trial.

The appeal was dismissed unanimously. Laws LJ gave the judgment, with Tuckey and Waller LJJ agreeing. The order provided for costs to be determined under the Community Legal Services (Costs) Regulations 2000, with the appellant’s liability assessed as nil. Permission to appeal to the House of Lords was refused.

1. Standard of proof. In civil proceedings alleging serious wrongdoing, the applicable standard remains the balance of probabilities. The seriousness and inherent improbability of the allegation may mean that cogent evidence is required, but the legal standard is not heightened. The court applied the approach described in Rehman [2001] 3 WLR 877 and In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563.
2. Injuries in custody. The court accepted, for the purposes of the argument, that an unjustified assault of the alleged kind would violate Article 3 of the European Convention on Human Rights. Strasbourg authority, including Salman v Turkey 34 ECHRR 425, supported a powerful evidential burden on the authorities to provide a plausible explanation and substantial positive evidence. That burden did not alter the domestic legal burden or require a special rule in tort claims. The claimant still had to prove the case on the balance of probabilities.
3. Merits. The trial judge had addressed whether the Home Office’s explanation was viable. He was entitled to accept the medical and prison evidence, reject the appellant’s account, and infer that the injuries had been self-inflicted during the evening. The fact that self-infliction was improbable did not make the finding perverse, particularly where the evidence could not medically distinguish self-injury from blows by others.
4. Bias and fair trial. Complaints about judicial conduct may concern intervention that disables a party from presenting its case or conduct that evinces prejudice or bias. The assessment must be overall. Although the judge had behaved badly, with discourtesy and ill-temper, his conduct did not dislocate or undermine the trial. Both parties’ cases were fully developed, and the conduct did not establish bias or denial of a fair hearing.

• Court of Appeal (Civil Division): On 11 December 2002, the court dismissed the appeal and refused permission to appeal to the House of Lords.
• Central London County Court: His Honour Judge Rich QC dismissed the appellant’s claim on 19 April 2002.