In re CD (Original Respondent and Cross-appellant) (Northern Ireland)

The civil standard of proof is finite and unvarying. A fact is established when it is more likely than not. A serious allegation does not create a higher civil standard or a special requirement for cogent evidence. Inherent improbability, the gravity of an allegation and consequences bearing on its likelihood require appropriately careful scrutiny, not an altered probability threshold.

A tribunal acts fairly where it provides an effective opportunity to secure and cross-examine an absent witness. Under article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the expedition of the authority against which relief is sought must be assessed during the period for which it was responsible. A long overall lapse does not itself establish breach where that authority acted reasonably and delays were largely beyond its control.

A mandatory life prisoner was recalled after allegations that he had sexually abused two children. The Life Sentences (Northern Ireland) Order 2001 required the Life Sentence Review Commissioners to consider his release. Having examined recorded interviews and extensive oral and forensic evidence, the Commissioners found the allegations proved on the balance of probabilities and decided that he continued to present a significant risk of serious harm.

Girvan J dismissed the prisoner's application for judicial review. The Court of Appeal, [2007] NICA 33, allowed his appeal and quashed the Commissioners' decision because it considered that allegations of such gravity required more compelling evidence than would ordinarily suffice under the civil standard. It rejected his procedural unfairness and delay grounds.

The Commissioners appealed on the standard of proof. The prisoner cross-appealed on procedural fairness, the causal connection required by article 5(1) of the Convention and delay under article 5(4). The central question was whether serious allegations alter the evidence required by the balance-of-probabilities standard and whether the Commissioners had acted lawfully and fairly.

1. Disposition. Lord Carswell delivered the leading opinion. Lords Bingham, Scott and Brown agreed with it, and Lord Neuberger agreed with both Lord Carswell and Lord Brown. The House unanimously allowed the Commissioners' appeal, restored the judge's order, dismissed the prisoner's cross-appeal and dismissed the application for judicial review.

2. Civil standard of proof. Per Lord Carswell, there are only two common-law standards: proof beyond reasonable doubt and proof on the balance of probabilities. The latter always asks whether the event was more likely than not. The seriousness of an allegation does not raise that threshold or impose a separate requirement for specially cogent evidence. The approach in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and Secretary of State for the Home Department v Rehman [2001] UKHL 47 was applied.

   Inherent improbability, the seriousness of the allegation and consequences which make the alleged conduct less likely are relevant when weighing probabilities. They may require critical and anxious scrutiny. Consequences do not independently justify a higher standard or an exceptional quality of evidence. Lord Carswell approved paragraph 62 of R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, subject to that qualification.

3. Application to the Commissioners. Per Lord Carswell, the Commissioners applied the correct standard. They considered alternative perpetrators, examined the prisoner's account and scrutinised the evidence with appropriate care. Once the abuse itself was established, it was not inherently unlikely that a family member had committed it. The evidence clearly and cogently supported their finding that the prisoner was responsible.

4. Procedural fairness. Per Lord Carswell, the procedure was fair. The Commissioners offered the prisoner an adjournment so that he could subpoena the principal complainant and cross-examine her as though she had been called by the Secretary of State. His decision not to use that facility did not convert her absence into unfairness, and the essence of his right of access to the tribunal was not impaired.

5. Convention rights. Per Lord Carswell, there was a sufficient causal connection between the original murder conviction and the prisoner's continuing detention following recall, so article 5(1) was not breached. For article 5(4), the relevant complaint was against the Commissioners. Their responsibility began when the case was referred to them in November 2001. Although the aggregate delay caused legitimate disquiet and tribunals should act proactively where unavoidable delays accumulate, the Commissioners had taken reasonable steps and the material delays were mostly outside their control. No declaration of breach was warranted.

6. Lord Brown's additional observations. Lord Brown agreed in the result and reasoning. In non-dispositive observations, he questioned describing the standard in quasi-criminal proceedings as a civil standard which was practically indistinguishable from criminal proof. Once an intermediate standard is rejected, the appropriate civil or criminal standard should be selected directly.

1. House of Lords: In In re CD (Original Respondent and Cross-appellant) (Northern Ireland) [2008] UKHL 33, unanimously allowed the Commissioners' appeal, restored the judge's order and dismissed the prisoner's cross-appeal and application for judicial review.
2. Court of Appeal in Northern Ireland: [2007] NICA 33, allowed the prisoner's appeal and quashed the Commissioners' decision because it considered that the wrong approach had been taken to the evidential requirements of the civil standard. It rejected the other grounds.
3. High Court of Justice in Northern Ireland: Girvan J dismissed the application for judicial review on 23 May 2006.
4. Life Sentence Review Commissioners: On 3 August 2005, declined to direct release after finding the sexual-abuse allegations proved on the balance of probabilities and finding a continuing risk of serious harm.