Evidence part 3 The Standard of Proof
Last week we dealt with the burden of proof. That is on whom the onus lies of proving something. This week we deal with the standard of proof namely exactly what they have to do to discharge that burden.
There are essentially two standards. One is "proof beyond reasonable doubt", the other is "proof on a balance of probabilities". Proof beyond reasonable doubt is required in criminal cases. Proof on a balance of probabilities is required in civil cases. It is also required in criminal cases where the onus of proof is put on the defendant (as per last week where for example once certain facts are proved by the Crown then the onus is on the defendant to show that he had a licence etc).
Proof beyond reasonable doubt means that any benefit of the doubt is given to the defendant, but it does not mean that fanciful or spurious doubts should avoid conviction. Lord Denning, that most distinguished judge, (then Mr Justice Denning) put it this way in the case of Miller v Ministry of Pensions,[1947] 2 All ER 372, at the bottom of page 373, referring to that evidence necessary in a criminal case before an accused person is found guilty: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.". This is therefore a very high and exacting standard, but not a licence for a jury to allow ridiculous doubts to influence them. Another way that it is put to juries these days is that they should be satisfied so that they "feel sure".
In a civil case the balance of probabilities merely means more likely than not (the same being the standard where that is applicable in criminal cases to prove an exception). Therefore even if something is only marginally more likely than not, that will be proof to the appropriate standard.
Sometimes in civil cases very serious allegations are made. Is the same standard applicable to those allegations as to any other allegation a civil case? The answer is yes, but with the following qualification, namely that clear proof is required. Some cases have sometimes mixed matters up by suggesting that there is a higher standard in civil cases where for example fraud or other discreditable conduct is alleged. However there is not. What the law requires is that where a serious allegation is made that there should be correspondingly clear proof. Another distinguished jurist, Lord Hoffmann, put it this way in Secretary of State for the Home Department v Rehman (2003) 1 AC 153 at paragraph 55: "The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.". In other words, the more serious the allegation or the more serious the consequences if the allegation were proved, the stronger the evidence has to be before a court would find the allegation proved on the balance of probabilities.
This is why someone can be acquitted of a criminal offence but then successfully sued by the victim in the civil court. The standard of proof in each case is different.