CD, Re (Northern Ireland)

The House of Lords allowed the appeal by the Life Sentence Review Commissioners and dismissed the respondent's application for judicial review. The court held that the Commissioners applied the correct legal standard when deciding whether the respondent should be released: the civil standard of proof (the balance of probabilities) applies, but is applied with appropriate care and critical scrutiny where the allegation is serious. The court rejected the submission that a distinct, higher or intermediate standard of proof was required. The court also found that the panel's procedure was not unfair in refusing to compel the complainant to give oral evidence and that the delay between recall and decision did not amount to undue delay by the Commissioners.

Background and parties:

• The respondent (CD) was convicted of murder in 1982 and received a life sentence. He was released on licence in April 1996 but recalled to prison in March 1997 following allegations of sexual offences made by two nieces. The Director of Public Prosecutions later discontinued prosecution. The respondent remained detained pending consideration under the Life Sentences (Northern Ireland) Order 2001 and the case was referred to the Life Sentence Review Commissioners.
• The Commissioners decided on 3 August 2005 not to direct his release. The respondent applied for judicial review. Girvan J dismissed the challenge on 23 May 2006. The Court of Appeal ([2007] NICA 33) allowed the respondent's appeal and quashed the Commissioners' decision on the ground that the Commissioners had applied an incorrect (insufficiently demanding) approach to the civil standard of proof. The Commissioners appealed to the House of Lords.

Nature of the claim and issues:

• (i) The respondent sought judicial review of the Commissioners' decision declining to direct his release. Relief sought was quashing of that decision and declarations as to illegality and breaches of rights under the European Convention on Human Rights.
• (ii) The principal issues were: (a) whether the procedure adopted by the Commissioners was unfair for not compelling the complainants to give oral evidence; (b) whether the Commissioners applied the correct standard of proof (civil standard, and whether a more cogent or intermediate standard was required); (c) whether there was a breach of article 5(1) ECHR through insufficient causal connection between the original conviction and the continued detention; and (d) whether delay between recall and determination breached article 5(4) ECHR.

Court's reasoning and conclusions:

• The House of Lords affirmed that only two legal standards of proof exist: the civil standard (balance of probabilities) and the criminal standard (beyond reasonable doubt). The civil standard is applied flexibly: the inherent improbability of an event, the seriousness of the allegation and the gravity of the consequences require a tribunal to test evidence more critically, but do not create a distinct higher standard. Authorities such as In re H (Minors) [1996] AC 563 and Secretary of State for the Home Department v Rehman [2003] 1 AC 153 were applied to this effect.
• The court concluded that the Commissioners had given careful and anxious scrutiny to the evidence, had considered alternative perpetrators, had weighed the video and other evidence and had properly concluded on the balance of probabilities that the respondent had committed the assaults. The Court of Appeal was therefore wrong to quash their decision on the ground that they required a greater standard of proof.
• The court held the procedure was not unfair: the Commissioners offered the respondent means to secure the complainant's attendance; the tactical stance of the respondent’s representatives weakened the complaint of unfairness.
• On article 5(4) delay, the court found that much of the total delay lay outside the Commissioners' period of responsibility and that, having examined the chronology, the Commissioners took reasonable steps to progress the matter; no declaration of breach was warranted against the Commissioners.

Appeal allowed. The House of Lords held that the Commissioners applied the correct standard of proof — the civil standard (balance of probabilities) applied flexibly and no intermediate or higher standard was required. The Commissioners had given careful and anxious scrutiny to the evidence, their procedure was not unfair, and they did not delay unduly; accordingly the Court of Appeal's order quashing the Commissioners' decision was set aside and the respondent's application for judicial review was dismissed.

The respondent's licence was revoked in March 1997. The Life Sentence Review Board considered the matter (1998–2000) and a judicial review application was dismissed (29 June 2001). The Life Sentences (Northern Ireland) Order 2001 took effect and the case was referred to the Life Sentence Review Commissioners on 29 November 2001. The Commissioners heard the matter and decided on 3 August 2005 not to direct release. Girvan J dismissed the respondent's application for judicial review on 23 May 2006. The Court of Appeal ([2007] NICA 33) allowed the respondent's appeal and quashed the Commissioners' decision. The Commissioners appealed to the House of Lords which allowed the appeal ([2008] UKHL 33) on 11 June 2008.