COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Mr Justice Munby
Strand, London, WC2A 2LL
B e f o r e :
(The Rt Hon Sir Anthony Clarke)
LORD JUSTICE RIX
LORD JUSTICE RICHARDS
| The Queen (on the application of AN)
|- and -
|The Mental Health Review Tribunal (Northern Region)
- and -
(1) The Secretary of State for the Home Department
(2) Mersey Care Mental Health NHS Trust
(3) MIND (The National Association for Mental Health)
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Angus McCullough (instructed by The Treasury Solicitor) for the Respondent
Mr Tim Ward (instructed by The Treasury Solicitor) for Secretary of State
The second and third interested parties did not appear on the appeal
Crown Copyright ©
Lord Justice Richards :
The statutory framework
"The conditions referred to in subsection (1) above are that -
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either –
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."
"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as 'a restriction order'."
"(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and –
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied –
(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment …."
"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if –
(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above –
(a) paragraph (a) of that subsection applies; but
(b) paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient."
The tribunal's consideration of AN's case
"In January 1984 AN carried out the particularly unpleasant and frenzied killings of a mother and her two children. He was found unfit to plead and admitted in March 1985 to what is now Ashworth Hospital following a direction made under section 5 of the Criminal Procedure (Insanity) Act 1964. Having subsequently been found fit to plead he was convicted at the Central Criminal Court in November 1987 on three counts of manslaughter on the ground of diminished responsibility. He was made the subject of a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983. He has remained in Ashworth Hospital ever since. Applications to the Tribunal for his discharge were refused in 1987 (twice), 1989, 1993, 1997, 1999 and 2001. He made a further application under section 70 of the Act in 2004. The Tribunal convened on 27 July 2004 and heard a considerable body of evidence over 5 days. On 14 August 2004 the Tribunal decided that AN should not be discharged."
(1) Was AN suffering from a "psychopathic disorder" within the meaning of the Act? Such a disorder is defined in section 1(2) as "a persistent disorder or disability of mind … which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned". On the first limb of that definition the issue was whether AN suffered from a personality disorder (which it was accepted would amount to a persistent disorder or disability of mind) or merely had certain personality traits but no personality disorder. On the second limb of the definition, the issue was whether the disorder, if established, had resulted in abnormally aggressive or seriously irresponsible conduct in the past and there was a real risk that, if treatment in hospital were discontinued, it would do so in the future (see R (P) v. Mental Health Review Tribunal  EWCA Civ 697). In paras 2-7 of its statement of reasons the tribunal gave detailed reasons for preferring the evidence of Dr Mulligan, Dr McInerney and Dr Ireland and for concluding that AN was suffering from a psychopathic disorder as defined.
(2) If AN suffered from a psychopathic disorder, was the condition "treatable" in the sense that treatment was available in hospital which was likely to alleviate or prevent a deterioration of the disorder? Although there is no express requirement as to treatability in section 73, the requirement applies to the making of a hospital order in the first place under section 37 and it was not in dispute that, following Reid v. Secretary of State for Scotland  2 AC 512, it is also imported into section 73. It does not matter for this purpose whether it is treated as a discrete criterion or as an aspect of the appropriateness criterion considered in sub-para (3) below. The case advanced on behalf of AN before the tribunal was that further detention in hospital would be counter-productive and that any treatment that might benefit him could only be given in the community. The tribunal rejected that argument, stating in para 8 of its reasons that it had no hesitation in concluding that AN was treatable.
(3) If AN suffered from a psychopathic disorder, was it "of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment"? In para 9 of its reasons the tribunal stated that AN's lack of insight and the amount of work to be done meant that it was not only appropriate but necessary for him to be detained for such treatment. It added in para 10 that AN's view of his ability to cope in the community was unrealistic and that it was satisfied that there was a serious risk of relapse should he not receive further treatment in hospital to prepare him to manage relevant risk factors.
(4) Was it "necessary for the health and safety of the patient or for the protection of other persons" that he should receive such treatment in hospital? The tribunal stated at the end of para 10 of its reasons that it followed from its previous findings that it was satisfied that the criterion was met.
"We firstly considered interesting submissions on the standard of proof to be applied to our deliberations and concluded that in relation to an assessment of conflicting expert opinions and diagnoses a balance of probabilities is the realistic standard. However we consider that in accordance with our normal [practice] whenever it is necessary to resolve important issues of fact upon which important consequence[s] flow a much higher standard, akin to the criminal standard, is both fair and reasonable. This has been our approach throughout our consideration of the evidence in this Application."
The judgment of Munby J
"71. In my judgment the applicable standard of proof is the ordinary civil standard of proof 'on a balance of probability'. That is consistent with authority and principle. It accords with the dicta in Reid v Secretary of State for Scotland  2 AC 512 and in R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening)  EWCA Civ 415,  QB 1. And, as Mr McCullough submits, … it is confirmed by a purposive construction of the Act and a consideration of the statutory context in which the Tribunal operates."
"I have said enough to show that in many aspects of its task the Tribunal is not concerned so much with finding facts which are capable of exact demonstration by 'hard' science but rather with a process of judgment, evaluation and assessment which involves the appreciation and evaluation of inherently imprecise and often differing or conflicting psychiatric evidence. Moreover the Tribunal is necessarily peering into an as yet unknown and unknowable future and, particularly in the case of a restricted patient, seeking to evaluate, assess and minimise future risks – risks of medical relapse and, it may be, risks of re-offending."
"100. As Mr Bowen correctly observes, under section 72 the Tribunal has to consider a number of issues, including:
(i) Does the patient suffer from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder?
(ii) If so, is it of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment?
(iii) Is it necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment, that is, treatment in hospital?
In the case of a restricted patient there is a further issue to be considered under section 73:
(iv) Alternatively, is it appropriate for the patient to remain liable to be recalled to hospital for further treatment (and therefore to be conditionally rather than absolutely discharged)?
To what extent, if at all, are any of these issues susceptible to proof?
101. In my judgment issue (i) involves matters which are, in principle, susceptible to proof and which therefore fall to be determined by reference to the civil standard of proof 'on a balance of probability'. Whether someone is suffering from some (and if so what) form of mental illness or mental disorder is a question of fact – present fact. The nature and degree of a patient's condition, although involving questions of diagnosis and matters of medical opinion, are nonetheless matters of present fact which are, in principle, amenable to proof in the same way as any other matter of past or present fact. Bryan CJ in 1477 may have observed (I translate the law French) that 'the Devil himself knoweth not the thought of man' (YB 17 E4 Pasch fo 2 pl 2), but it has been trite law ever since 1885, as Bowen LJ famously said in Edgington v Fitzmaurice (1885) 29 ChD 459 at p 483, that:
'the state of a man's mind is as much a fact as the state of his digestion.'
102. Issues (ii), (iii) and (iv), however, of their very nature raise quite different questions. In large measure they are all looking not just to the present but also to the future. More significantly, they are all issues which involve an evaluative judgment and which are not susceptible to a defined standard of proof. They are, in my judgment, issues to be determined not by the application of the civil (or indeed any other) standard of proof but, as I have already indicated, by a process of evaluation and judgment. The Tribunal is not here concerned so much with finding facts which are capable of exact demonstration but rather with a process of judgment, evaluation and assessment which involves the appreciation and evaluation of inherently imprecise and often differing or conflicting psychiatric evidence. Moreover the Tribunal is necessarily peering into the future and, particularly in the case of a restricted patient, seeking to evaluate, assess and minimise future risks – risks of medical relapse and, it may be, risks of re-offending."
"117. Under section 72 the Tribunal has to ask itself the following questions when considering an application for the discharge of a patient who is subject to a hospital order but is not a restricted patient:
(i) Are we satisfied (see section 72(1)(b)(i)) that (a) the patient is now suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder (b) of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment?
(ii) Are we satisfied (see section 72(1)(b)(ii)) that it is necessary (a) for the health or safety of the patient or (b) for the protection of other persons that he should receive such treatment?
The onus of establishing this is on the detaining authority. If the answer to both these questions is 'No, we are not satisfied' then the Tribunal must discharge the patient: section 72(1)(b). If the answer to either question is 'Yes, we are satisfied', then the Tribunal is not obliged to discharge the patient but may nonetheless decide to do so: see the opening words of section 72(1). …
118. The 'default position' under section 72, therefore, is this. If the Tribunal is not satisfied of the matters referred to in either 72(1)(b)(i) or section 72(1)(b)(ii) – if, in other words, the detaining authority fails to establish its case under section 72(1)(b)(i) and fails to establish its case under section 72(1)(b)(ii) – then the Tribunal must direct the discharge of the patient. In any other case it may direct his discharge.
119. Under section 73 the Tribunal has to ask itself the following questions when considering an application for the discharge of a restricted patient:
(i) Are we satisfied (see sections 73(1)(a) and 72(1)(b)(i)) that (a) the patient is now suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder (b) of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment?
(ii) Are we satisfied (see sections 73(1)(a) and 72(1)(b)(ii)) that it is necessary (a) for the health or safety of the patient or (b) for the protection of other persons that he should receive such treatment?
(iii) Are we satisfied (see section 73(1)(b)) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?
The onus of establishing the matters referred to in questions (i) and (ii) is on the detaining authority. The onus of establishing the matter referred to in question (iii) is on the patient. … If the answer to both question (i) and question (ii) is 'No, we are not satisfied' – if, in other words, the detaining authority fails to establish its case under section 72(1)(b)(i) and fails to establish its case under section 72(1)(b)(ii) – and if the answer to question (iii) is 'Yes, we are satisfied' – if, in other words, the patient does establish his case under section 73(1)(b) – then the Tribunal must direct the absolute discharge of the patient: see section 73(1). If the answer to both question (i) and question (ii) is 'No, we are not satisfied' but the answer to question (iii) is also 'No, we are not satisfied' – if, in other words, the detaining authority fails to establish its case under section 72(1)(b)(i) and fails to establish its case under section 72(1)(b)(ii) but at the same time the patient fails to establish his case under section 73(1)(b) – then the Tribunal must direct the conditional discharge of the patient: see section 73(2). In any other circumstances the Tribunal will not direct the discharge of the patient.
120. The ultimate 'default position' under section 73, therefore, is this. If the Tribunal is not satisfied of any of the matters referred to in either limb of section 72(1)(b) or in section 73(1)(b), then it must direct the conditional discharge of the patient."
The issues on the appeal
(1) Did the judge err in holding that the correct standard of proof, in relation to those issues under sections 72 and 73 that are susceptible to proof to a defined standard, is the ordinary civil standard of proof on the balance of probabilities?
(2) Did the judge err in holding that certain issues under sections 72 and 73 are not susceptible of proof to a defined standard but are to be determined by a process of evaluation and judgment?
(3) Did the judge err in his formulation of the "default position" under sections 72 and 73?
Issue (1): standard of proof
The appellant's case
(1) The "flexible standard" approach, in which the civil standard, while expressed as balance of probabilities, is nevertheless capable of a range of differing degrees of probability, from "more likely than not" to something approaching the criminal standard of "beyond reasonable doubt". Cases in this category are said to include Bater v. Bater  P 35, Hornal v. Neuberger Products Ltd.  1 QB 247, Blyth v. Blyth  AC 643 and R v. Secretary of State for the Home Department, ex p. Khawaja  AC 74. A similar approach has been adopted in Australia (see Briginshaw v. Briginshaw  CLR 336, which has been the basis of State and Federal legislation) and Canada (see Smith v. Smith  2 SCR 312).
(2) The "fixed civil standard", where the standard of proof remains fixed but the degree of evidence needed to satisfy it varies because events such as serious criminal offences are said to be less probable. Cases in this category are said to include Re Dellow's Will Trusts  1 WLR 451, Re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 and Secretary of State for the Home Department v. Rehman  1 AC 153.
(3) The "quasi-criminal standard" approach, in which the "flexible standard" approach is said to be taken to its logical conclusion so as to encompass the criminal standard. Cases placed in this category include B v. Chief Constable of Avon and Somerset Constabulary  1 WLR 340, Gough v. Chief Constable of the Derbyshire Constabulary  QB 1213 and R (McCann) v. Crown Court at Manchester  1 AC 187.
(4) The "single third standard of proof", which rests between a bare civil standard and the criminal standard. This was rejected in this jurisdiction in In re H but has been recognised in the USA as the standard of "clear and convincing evidence" and is applied to cases involving infringements of fundamental rights, including mental health cases: see, for example, Addington v. Texas.
The main English authorities
"The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard.
As Best CJ and many other great judges have said, 'in proportion as the crime is enormous, so ought the proof to be clear'. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter."
"Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others."
"It is, I think, clear from the authorities that a difference of approach in civil cases has been recognized. Many judicial utterances show this. The phrase 'balance of probabilities' is often employed as a convenient phrase to express the basis upon which civil issues are decided. It may well be that no clear-cut logical reconciliation can be formulated in regard to the authorities on these topics. But perhaps they illustrate that 'the life of the law is not logic but experience.' In some criminal cases liberty may be involved; in some it may not. In some civil cases the issues may involve questions of reputation which can transcend in importance even questions of personal liberty. Good name in man or woman is 'the immediate jewel of their souls.'
But in truth no real mischief results from an acceptance of the fact that there is some difference of approach in civil actions. Particularly is this so if the words which are used to define that approach are the servants but not the masters of meaning. Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities. This view was denoted by Denning LJ when in his judgment in Bater v. Bater he spoke of a 'degree of probability which is commensurate with the occasion' and of 'a degree of probability which is proportionate to the subject-matter.'
In English law the citizen is regarded as being a free man of good repute. Issues may be raised in a civil action which affect character and reputation, and these will not be forgotten by judges and juries when considering the probabilities in regard to whatever misconduct is alleged. …"
"It seems to me that in civil cases it is not so much that a different standard of proof is required in different circumstances varying according to the gravity of the issue, but, as Morris LJ says, the gravity of the issue becomes part of the circumstances which the court has to take into consideration in deciding whether or not the burden of proof has been discharged. The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. This is perhaps a somewhat academic distinction and the practical result is stated by Denning LJ: 'The more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case, reach the very high standard required by the criminal law.' In this case the issue is whether or not the wife feloniously killed the husband. There can hardly be a graver issue than that, and its gravity weighs very heavily against establishing that such a killing took place, even for the purpose of deciding a civil issue."
"In short it comes to this: so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. So far as the bars to divorce are concerned, like connivance or condonation, the petitioner need only show that on balance of probability he did not connive or condone as the case may be" (original emphasis).
"My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited: and I would direct particular attention to the words of Morris LJ already quoted. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v. Bater  P. 35 and in Hornal v. Neuberger Products Ltd. 1 Q.B. 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. "... the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue": Dixon J. in Wright v. Wright (1948) 77 C.L.R. 191, 210. I would, therefore, adopt the civil standard flexibly applied in the way described in the case law to which I have referred. And I completely agree with the observation made by my noble and learned friend, Lord Bridge of Harwich, that the difficulties of proof in many immigration cases afford no valid ground for lowering the standard of proof required.
Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law."
"the appropriate standard is that which applies generally in civil proceedings, namely proof on a balance of probabilities, the degree of probability being proportionate to the nature and gravity of the issue. As cases such as those in the present appeals involve grave issues of personal liberty, the degree of probability required will be high."
"the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree."
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. … Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow's Will Trusts  1 WLR 451, 455: 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'
This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd.  1 QB 247, 266. This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.
No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a standard higher than the preponderance of probability. … The law looks for probability, not certainty. Certainty is seldom attainable. But probability is an unsatisfactorily vague criterion because there are degrees of probability. In establishing principles regarding the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings. Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof on a preponderance of probability is another, lower standard having the in-built flexibility already mentioned. If the balance of probability standard were departed from, and a third standard were substituted in civil cases, it would be necessary to identify what the standard is and when it applies. Herein lies a difficulty. If the standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change."
"55. I turn next to the Commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. 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)  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."
"30. It should, however, be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters: Bater v Bater  P 35, Hornal v Neuberger Products Ltd  1 QB 247, and R v Secretary of State for the Home Department, Ex p Khawaja  AC 74.
31. In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates' court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
"90. It does not follow from this that a mere balance of probabilities suffices to justify the making of an order. Banning orders under section 14B fall into the same category as antisocial behaviour orders and sex offender orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard: see B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340, 354 and R (McCann) v Crown Court at Manchester  1 WLR 1084, 1102.
91. Thus the necessity in the individual case to impose a restriction upon a fundamental freedom must be strictly demonstrated. The first thing that has to be proved under section 14B(4)(a) is that the respondent has caused or contributed to violence or disorder in the United Kingdom or elsewhere. Mr Pannick conceded that the standard of proof of this is practically indistinguishable from the criminal standard.
92. The same is true of the next requirement, that imposed by section 14B(4)(b), though this is less easily derived from the language of the statute. The court must be 'satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches'. In practice the 'reasonable grounds' will almost inevitably consist of evidence of past conduct. That conduct must be such as to make it reasonable to conclude that if the respondent is not made subject to a banning order he is likely to contribute to football violence or disorder in the future. The past conduct may or may not consist of or include the causing or contributing to violence or disorder that has to be proved under section 14B(4)(a), for that violence or disorder is not required to be football related. It must, however, be proved to the same strict standard of proof. Furthermore it must be conduct that gives rise to the likelihood that, if the respondent is not banned from attending prescribed football matches, he will attend such matches, or the environs of them, and take part in violence or disorder.
93. These matters are not readily susceptible of proof. We can well understand the practice that is evidenced by this case of using a football intelligence service to build up profiles of 'football prominents'. Such a practice may well be the only way of assembling evidence sufficiently cogent to satisfy the requirements of section 14B(4)(b). Those requirements, if properly applied in the manner described above, will provide a satisfactory threshold for the making of a banning order."
"37. Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of the matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. …"
"82. Mr Crow for the Secretary of State said that his preferred position was that the standard to be applied in these proceedings should be the civil standard. His submission, as it was put in his written case, was that although the civil standard was a single, inflexible test, the inherent probability or improbability of an event was a matter to be taken into account when the evidence was being assessed. He maintained that this view was consistent with the position for which he contended, that these were civil proceedings which should be decided according to the civil evidence rules. But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.
83. This … was the view which the Court of Session took in Constanda v. M 1997 SC 217 when it decided that proof to the criminal standard was required of allegations that a child had engaged in criminal conduct although the ground of referral to a children's hearing was not that he had committed an offence but that he was exposed to moral danger. There is now a substantial body of opinion that, if the case for an order such as a banning order or a sex offender order is to be made out, account should be taken of the seriousness of the matters to be proved and the implications of proving them. It has also been recognised that if this is done the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard: see B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340, 354, para 31, per Lord Bingham of Cornhill CJ; Gough v Chief Constable of the Derbyshire Constabulary  QB 1213, 1242-1243, para 90, per Lord Phillips of Worth Matravers MR. As Mr Crow pointed out, the condition in section 1(1)(b) of the Crime and Disorder Act 1998 that a prohibition order is necessary to protect persons in the local government area from further anti-social acts raises a question which is a matter for evaluation and assessment. But the condition in section 1(1)(a) that the defendant has acted in an anti-social manner raises serious questions of fact, and the implications for him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."
"17. It has, of course, long been established that there is flexibility in the civil standard of proof which allows it to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters."
The application of the standard of proof
"I agree with [Mr McCullough] that to raise the standard of proof above the ordinary civil standard of proof would subvert the obvious purpose of the Act, which seeks both to protect the interests of the individual whose ability to act in his own best interests is impaired and at the same time enable a proportionate balance … to be struck between individual and public interests. It would, as Mr McCullough submits, relegate the interests of the patient, as objectively ascertained, and of the public, to a position subsidiary to the principle of personal autonomy – an approach for which there is no principled basis. And it would thereby create a heightened risk to patients and the public – contrary, as it seems to me, to the very scheme and purpose of the Act."
That was said in support of the judge's conclusion that the applicable standard of proof is the ordinary civil standard of proof on the balance of probabilities; but it also tells against demanding an especially high evidential requirement in order to meet that standard.
Conformity with the ECHR
"It is recalled that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (the Winterwerp judgment, at para 39 …)."
The court examined the material on which the applicant's detention had been based, and found that "the applicant has been reliably shown to have been suffering from a mental disorder of a kind or degree warranting compulsory confinement …" (para 101).
Issue (2): issues susceptible to proof to the defined standard
"If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted in an anti-social manner …. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation" (original emphasis).
We have set out previously the passage in para 83 where Lord Hope expressed a similar view (see para 55 above). We have also pointed out that the rest of their Lordships expressed agreement with both Lord Steyn and Lord Hope.
"In any case, I agree with the Court of Appeal that the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant's deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee."
Issue (3): the default position under sections 72 and 73