The Lords have given quite an interesting judgment today on the standard of proof in care proceedings under the Children Act 1989, which I think in principle applies across the board in civil proceedings. They’ve cut through the confusion that’s built up over the years around the idea that some kinds of allegations require more proof, or a higher standard of proof, than others: the more serious the allegation, the more cogent the evidence required to overcome its inherent improbability. Some cases have suggested that a heightened standard of proof is needed which is indistinguishable from the criminal standard.

No, the Lords have said: there is one civil standard of proof – whether on the balance of probabilities something happened or not. The inherent likeliness or unlikeliness of something may be a common sense factor in evaluating evidence in a case – but no more than that (see para. 70 of Lady Hale’s speech). There is no rule of law that inherently unlikely events need to be proved more conclusively than other events.

I think this has to be right: the temptation to require more proof of apparently incredible allegations is actually a dangerous one that needs to be resisted. As Lady Hale says, murder is not inherently unlikely, and violence happens all too often. Particularly in the case of child abuse, the temptation to incredulity must be put aside.

If you’re wondering about the reference to lions and dogs – look at para. 72 of Lady Hale’s speech. I would have said “grass”, myself, rather than “greensward”.

2008-06-11T13:18:00+00:00Tags: , , , |