DJ, R (on the application of) v Mental Health Review Tribunal [2005] EWHC 587 (Admin)

“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 practise [sic] whenever it is necessary to resolve important issues of fact upon which important consequence [sic] 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.”

“There was no expert medical evidence called on behalf of [DJ] but in the Independent Social Circumstances Report put in on his behalf Mr Mennear suggested that at the time of his examination he was by no means certain that the statutory criteria were met. Bearing in mind that the burden of proof lay on the Detaining Authority and that it needed to demonstrate a right to detain on the balance of probabilities, the Tribunal accepted the evidence of Dr Ferris that the statutory criteria were met since there was no evidence to contradict this.”

“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 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.”

“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. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. 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 [1964] 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.”

“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 some 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.”

“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) [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.”

“The standard of proof is the balance of probabilities, but the importance of the issue for the parties and the public is such as to require particular care and consideration.”

“The points are so simple that the combined researches of counsel have not revealed any authority upon them. There is no authority because no one has thought it plausible up till now to question them.”

“[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 [1951] P 35, Hornal v Neuberger Products Ltd [1957] 1 QB 247, and R v Secretary of State for the Home Department, Ex p Khawaja [1984] 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.”

“[89] … We also reject the submission that section 14B proceedings are criminal. They neither require proof that a criminal offence has been committed, nor involve the imposition of a penalty. We find that the proceedings that led to the imposition of banning orders were civil in character. [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 14(B) 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 [2001] 1 WLR 340, 354 and R (McCann) v Crown Court at Manchester [2001] 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”

“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 matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] 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. 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, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself. 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. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).”

“[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] … 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.”

“The criminal law by itself offered inadequate protection to them. There was a model available for remedial legislation. Before 1998 Parliament had, on a number of occasions, already used the technique of prohibiting by statutory injunction conduct deemed to be unacceptable and making a breach of the injunction punishable by penalties.”

“[17] … In all these cases the requirements for the granting of the statutory injunction depend on the criteria specified in the particular statute. The unifying element is, however, the use of the civil remedy of an injunction to prohibit conduct considered to be utterly unacceptable, with a remedy of criminal penalties in the event of disobedience. [18] There is no doubt that Parliament intended to adopt the model of a civil remedy of an injunction, backed up by criminal penalties, when it enacted section 1 of the Crime and Disorder Act 1998. The view was taken that the proceedings for an anti-social behaviour order would be civil and would not attract the rigour of the inflexible and sometimes absurdly technical hearsay rule which applies in criminal cases.”

“We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as “largely illusory”

“[199] … it is important to distinguish between two different things: what the test is, on the one hand, and what is the nature of the evidence necessary to satisfy the test, on the other. As regards the test, the civil standard is the balance of probabilities. As regards the nature of the evidence, the authorities cited above show that where serious matters are in issue, for example conduct akin to dishonesty, the quality and weight of the evidence needs to be stronger than it would need to be if the allegations were less serious … [201] … the Tribunal will … direct itself in accordance with the speech of Lord Nicholls in Re H at p 586, that “…even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters”

“We also remind ourselves that many of the issues with which the Tribunal has to deal involve the appreciation or evaluation of economic questions, for example, whether an agreement “distorts” competition, the extent of the relevant market, whether dominance is established, whether certain conduct is “objectively justified”, whether an agreement satisfies Article 81(3) and so on. Under the 2004 Amendment Regulations, the question whether the Chapter I prohibition is infringed may now involve examining not only whether section 2 of the Act is satisfied, but also whether section 9 of the Act is not satisfied. Section 9 includes such concepts as “economic progress”, “allowing consumers fair share of the economic benefits”, and whether restrictions are “not indispensable”

“to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others. Proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process.”

“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.”

“adopting a “standard of proof is more than an empty semantic exercise.”

“standards of proof are important for their symbolic meaning as well as for their practical effect.”

“This unique standard of proof … is regarded as a critical part of the “moral force of the criminal law,” and we should hesitate to apply it too broadly or casually in noncriminal cases.”

“Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.”

“In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions. This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena “stigma” or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual. The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others. Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear to what extent, if any, the state’s interests are furthered by using a preponderance standard in such commitment proceedings.”

“At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered. The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.”

“There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense … a civil commitment proceeding can in no sense be equated to a criminal prosecution. … The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free. The full force of that idea does not apply to a civil commitment. It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction. However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient’s condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. It cannot be said, therefore, that it is much better for a mentally ill person to “go free” than for a mentally normal person to be committed.”

“Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question – did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous. The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical “impressions” drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for “factfinding” is a “reasonable medical certainty.”

“We conclude that it is unnecessary to require states to apply the strict, criminal standard. Having concluded that the preponderance standard falls short of meeting the demands of due process and that the reasonable-doubt standard is not required, we turn to a middle level of burden of proof that strikes a fair balance between the rights of the individual and the legitimate concerns of the state. We note that 20 states, most by statute, employ the standard of “clear and convincing” evidence; 3 states use “clear, cogent, and convincing” evidence; and 2 states require “clear, unequivocal and convincing” evidence. In Woodby v INS, 385 US 276 (1966), dealing with deportation, and Schneiderman v United States, 320 US, at 125, 159, dealing with denaturalization, the Court held that “clear, unequivocal, and convincing” evidence was the appropriate standard of proof. The term “unequivocal,” taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases. The issues in Schneiderman and Woodby were basically factual and therefore susceptible of objective proof and the consequences to the individual were unusually drastic – loss of citizenship and expulsion from the United States. We have concluded that the reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly, we conclude that use of the term “unequivocal” is not constitutionally required, although the states are free to use that standard. To meet due process demands, the standard has to inform the factfinder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases. We noted earlier that the trial court employed the standard of “clear, unequivocal and convincing” evidence in appellant’s commitment hearing before a jury. That instruction was constitutionally adequate. However, determination of the precise burden equal to or greater than the “clear and convincing” standard which we hold is required to meet due process guarantees is a matter of state law which we leave to the Texas Supreme Court.”

“This standard serves to “impress the factfinder with the importance of the decision” and it “forbids relief whenever the evidence is loose, equivocal or contradictory”.”

“clear and convincing proof is required. I do not suggest that anything more than the usual civil standard of proof on a balance of probability is required. But the more extreme the gravity of the matter in issue so, as it seems to me, the stronger and more cogent must the evidence be: cf the discussion in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 of the well-known statement by Ungoed-Thomas J in Re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research [1964] 1 WLR 451 at 455. Where, as here, life is at stake, the evidence must be scrutinised with especial care. The continuing validity and applicability of the advance directive must be clearly established by convincing and inherently reliable evidence.”

“Where life is at stake the evidence must be scrutinised with especial care. Clear and convincing proof is required. The continuing validity and applicability of the advance directive must be clearly established by convincing and inherently reliable evidence.”

“[16] An important question is what standard of proof is required before a court can properly be satisfied that it is appropriate to give permission for treatment where the patient does not consent to it. The judge was right to say that he had to be satisfied that the proposed treatment was both in the claimant’s best interests and “medically necessary” as that phrase should be understood and applied for the purposes of article 3 of the Convention. The best interests test goes wider than medical necessity: see In re S (Adult Patient: Sterilisation) [2001] Fam 15. The focus of the argument before us was on the requisite standard of proof for the purposes of article 3. In Herczegfalvy v Austria (1992) 15 EHRR 437, 484, para 82 the European Court of Human Rights said: “The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention is being complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of article 3, the requirements of which permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.” [17] In the light of this decision, it is common ground that the standard of proof required is that the court should be satisfied that medical necessity has been “convincingly” shown. That is the test that the judge applied: see paragraph 117 where he said: “the task of the court when considering whether proposed treatment is in breach of article 3 is to determine not simply whether such treatment is a medical necessity on the balance of probabilities but whether it has ‘been convincingly shown’ to be a medical necessity.” [18] Mr Kelly submitted that this test is, in effect, the same as the criminal standard of proof. We disagree. It seems to us that no useful purpose is served by importing the language of the criminal law. The phrase “convincingly shown” is easily understood. The standard is a high one. But it does not need elaboration or further explanation.” “The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention is being complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of article 3, the requirements of which permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.” “the task of the court when considering whether proposed treatment is in breach of article 3 is to determine not simply whether such treatment is a medical necessity on the balance of probabilities but whether it has ‘been convincingly shown’ to be a medical necessity.”

“the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.”

“the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’.”

“The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation … The standard of proof under s. 1 is the civil standard, namely, proof by a preponderance of probability. The alternative criminal standard, proof beyond a reasonable doubt, would, in my view, be unduly onerous on the party seeking to limit. Concepts such as “reasonableness”, “justifiability” and “free and democratic society” are simply not amenable to such a standard. Nevertheless, the preponderance of probability test must be applied rigorously. Indeed, the phrase “demonstrably justified” in s. 1 of the Charter supports this conclusion. Within the broad category of the civil standard, there exist different degrees of probability depending on the nature of the case … As Lord Denning explained in Bater v Bater, [1950] 2 All ER 458 (CA), at p. 459: 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 a higher degree of probability than that which it would require if considering whether negligence were 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. This passage was cited with approval in Hanes v Wawanesa Mutual Insurance Co, [1963] SCR 154, at p 161. A similar approach was put forward by Cartwright J in Smith v Smith, [1952] 2 SCR 312, at pp. 331-32: I wish, however, to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend on the totality of the circumstances on which its judgment is formed including the gravity of the consequences … Having regard to the fact that s. 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be, in the words of Lord Denning, “commensurate with the occasion”

“In so far as it is relevant to do so the Parole Board applies the civil standard of proof.”

“The inquiry under section 1(1)(b) [of the Crime and Disorder Act 1998], 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.”

“While doctors may be expected to exercise their best professional judgment in diagnosing the condition and assessing the cases of those suffering from mental disorder, and prescribing treatment, their conclusions will rarely be capable of scientific verification. There will often be room for a bona fide difference of professional opinion. In Johnson v United Kingdom (1997) 27 EHRR 296, para 61, the European Court of Human Rights said: “It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science.””

“ … psychiatry is not an exact science. Diagnosis is not easy or clear cut. As this and many other cases show, a number of different diagnoses may be reached by the same or different clinicians over the years. As this case also shows, co-morbidity is very common … It is not easy to disentangle which features of the patient’s presentation stem from a disease of the mind and which stem from his underlying personality traits. The psychiatrist’s aim should be to treat the whole patient. In this case, the patient's mental illness having been stabilised on medication, the aim was to address the underlying features of his personality which were getting in the way of his transfer back to a less restrictive setting. Once the state has taken away a person’s liberty and detained him in a hospital with a view to medical treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs.”

“There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient’s nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the Court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts. In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the … Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence.”

“In our judgment, that defines the policy and objects of the Act on far too narrow a basis. We prefer the view of McCullough J [1990] 1 WLR 168, 174 that: “These are to regulate the circumstances in which the liberty of persons who are mentally disordered may be restricted and, where there is conflict, to balance their interests against those of public safety.””

“necessary to balance the interests of the patient against those of public safety.” “These are to regulate the circumstances in which the liberty of persons who are mentally disordered may be restricted and, where there is conflict, to balance their interests against those of public safety.””

“The circumstances of the present case, which are similar to those considered by Latham J in Ex p Moyle [2000] Lloyd’s Rep Med 143, are not uncommon. A patient is detained who is unquestionably suffering from schizophrenia. While in the controlled environment of the hospital he is taking medication, and as a result of the medication is in remission. So long as he continues to take the medication he will pose no danger to himself or to others. The nature of the illness is such, however, that if he ceases to take the medication he will relapse and pose a danger to himself or to others. The professionals may be uncertain whether, if he is discharged into the community, he will continue to take the medication. We do not believe that article 5 requires that the patient must always be discharged in such circumstances. The appropriate response should depend upon the result of weighing the interests of the patient against those of the public having regard to the particular facts. Continued detention can be justified if, but only if, it is a proportionate response having regard to the risks that would be involved in discharge.”

“In determining whether it is appropriate to detain a patient in hospital, the interests of the patient have to be weighed against those of the public, and the tribunal has to determine whether the detention is proportional to the risks involved. If it is not satisfied that it is a proportionate response to those risks to detain the patient, then he must be discharged … the proportionate response to the risk may be achieved by the imposition of suitable conditions rather than by continuing the patient's detention. If the appropriate response can be so achieved, then the patient should be discharged.”

“In exercising its practical judgment the board is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury. In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance the board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury.”

“There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt.”

“[157] … I consider it worth making some general remarks at this stage about the law’s approach to the avoidance, or minimisation, of risk. The paradigm of the common law’s function is, I suppose, the case where A undertakes to prove a claim against B. Whether A is a public prosecutor or a private claimant, his case is won if it is proved and lost if it is not. Our long history of adversarial process conduces to a sense that this is the just way of doing things. The defendant is only subject to criminal sanction or civil redress if the case is properly proved against him, the standard of proof being appropriate to the subject-matter of the case. [158] But the law knows many instances in which a defendant is fixed with onerous legal consequences in the absence of any proof beyond a reasonable doubt or on the balance of probability; where, rather, all that can be shown is that there is a risk or a chance that this or that will eventuate. Such instances generally arise where the court is particularly called on to assess what may happen in the future. In the field of environmental law “risk theory”, as it is sometimes named, plays an increasingly important role. Claimants for damages for personal injuries may recover for the loss of a future chance (say of advancement at work) or the burden of a future danger (say of contracting epilepsy). In the law of crime, a man may be sentenced to a term of imprisonment, and it may be life imprisonment, longer than would be justified by considerations of retribution or deterrence; its justification consists in the unpredictable future risk which he presents of danger to the public. Our asylum law is about the avoidance of risk of persecution. Legislation concerning the disclosure (in some circumstances) of unproved allegations of sexual misconduct has been enacted to minimise the risk of abuse of children and vulnerable adults. [159] Other instances may readily be called to mind. I refer to such cases only to show that our law is no stranger to the prevention of risk. Its processes are not limited to the allocation of legal consequences on proof of facts. This is unsurprising. The prevention of risk may be a very powerful imperative; powerful enough, in reason, to justify the imposition of legal sanctions or burdens where there is no conventional proof that this or that has happened or will happen. It is true that in the instances I have mentioned relating to personal injury and crime, a case will at least have first been proved against the defendant before he has to pay for unproved risks. He will have been shown to have been negligent, or to have committed the crime in question, according to the appropriate standard of proof. The sanction imposed upon him for the prevention of risk – additional damages, longer imprisonment – is not the whole substance of the case against him.”

“by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite … And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”

“[43] … SIAC then identified five specific allegations made by the Secretary of State and came to the conclusion, applying a high civil balance of probabilities, they were not satisfied that the case against Mr Rehman had been made out. On one approach to the issue which was before them, the standard applied by SIAC was perfectly appropriate. In so far as the Secretary of State was relying on specific allegations of serious misconduct by Mr Rehman, then SIAC was entitled to say the allegations had not been proved. [44] However, in any national security case the Secretary of State is entitled to make a decision to deport not only on the basis that the individual has in fact endangered national security but that he is a danger to national security. When the case is being put in this way, it is necessary not to look only at the individual allegations and ask whether they have been proved. It is also necessary to examine the case as a whole against an individual and then ask whether on a global approach that individual is a danger to national security, taking into account the executive's policy with regard to national security. When this is done, the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion. Here it is important to remember that the individual is still subject to immigration control. He is not in the same position as a British citizen. He has not been charged with a specific criminal offence. It is the danger which he constitutes to national security which is to be balanced against his own personal interests.”

“Counsel for the appellant submitted that the civil standard of proof is applicable to the Secretary of State and to the Commission. This argument necessarily involves the proposition that even if the Secretary of State is fully entitled to be satisfied on the materials before him that the person concerned may be a real threat to national security, the Secretary of State may not deport him. That cannot be right. The task of the Secretary of State is to evaluate risks in respect of the interests of national security. Lord Woolf MR expressed the point with precision”

“[48] … it was wrong to treat the Home Secretary’s reasons as counts in an indictment and to ask whether each had been established to an appropriate standard of proof. The question was not simply what the appellant had done but whether the Home Secretary was entitled to consider, on the basis of the case against him as a whole, that his presence in the United Kingdom was a danger to national security. When one is concerned simply with a fact-finding exercise concerning past conduct such as might be undertaken by a jury, the notion of a standard of proof is appropriate. But the Home Secretary and the Commission do not only have to form a view about what the appellant has been doing. The final decision is evaluative, looking at the evidence as a whole, and predictive, looking to future danger. As Lord Woolf MR said, ante, p 168, para 44: “the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion.” [49] My Lords, I will say at once that I think that on each of these points the Court of Appeal were right.”

“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.” “the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion.”

“I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment.”

“the concept of a burden of proof is inappropriate where one is involved in risk evaluation.”

“It is concerned with the assessment of risk, a more than minimal risk of further grave offences being committed in the future, and … ultimately the burden of proof has no real part to play.”

“What the Parole Board must do is to decide in the light of all of the relevant material placed before it whether it is satisfied as envisaged by section 28(6)(b) of the 1997 Act.”

“[12] In assessing risk, the Board is reaching a judgment about an issue that is inherently incapable of proof. The difference between the position contended for by the claimant and that contended for by the defendants is rather more akin to a difference of emphasis as to how an inherently uncertain issue should be resolved. That said, there is, at least in principle, a clear distinction between a presumption that a prisoner shall continue to be detained unless he satisfies the Board that he no longer presents a danger to the public, and a presumption that he shall be released unless the Secretary of State satisfies the Board that the prisoner continues to present a danger to the public: see paragraphs 44 to 51 of Sim. [13] It is common ground that in practice, this distinction will be of no consequence in the great majority of cases. The Board will simply be asking itself, what is the extent of the risk? However, the distinction is capable of affecting the outcome in a minority of borderline cases where matters are so finely balanced that the Board is unable to decide whether the risk on release would be too high or sufficiently low.”

“the state of a man’s mind is as much a fact as the state of his digestion.”

“This is the language of proof, not suspicion. At this stage more is required than suspicion, however reasonable based.”

“As for the word “satisfied” … it … is a word with a range of meanings covering the criminal burden of proof (“satisfied so as to be sure”) through the civil burden of proof (“satisfied on a balance of probabilities”) to a synonym for “conclude or determine.” … It means that the court must make up its mind.”

“there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future … if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide … more is required than suspicion, however reasonably based … a court’s conclusion that the threshold conditions are satisfied must have a factual base, and … an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened.”

“[26] … He accepted that the sources of information on which he relied were hearsay information. It was put to him, and he accepted, that there was really a hierarchy of sources from which a psychiatrist in these circumstances ought to look to decide whether the applicant was suffering from mental illness. This included, first of all, the interview; secondly, the inpatient assessment, the notes and discussions with the staff who were looking after him in the hospital; and, thirdly, other sources. [27] He accepted that in the circumstances of this case one really obtained very little, if any, assistance from the first two sources, and that one was really down to the third source in finding any useful information at all. It is generally accepted that in diagnosing mental illness, which is not an easy task in borderline cases, the usual route to overcome uncertainty is to have the patient assessed as an inpatient in a mental hospital. That is what happened in this case. But, in my judgment, the doctors are, in reality, no wiser after the applicant has spent many months in hospital then they were before he was admitted. The plain fact is that on any objective assessment he has not displayed any signs of mental illness whilst in hospital. [28] The problem with other sources, as illustrated in this case, is to assess the reliability of what the doctors are being told. It is not only a question of the reliability of the facts that they are being told but also their interpretation of those facts. In my judgment, it is perfectly clear that doctors in these circumstances are not bound by rules of evidence, so that they can only accept material that would be admissible in the courts; certainly, not. They are entitled to look at the whole picture and, indeed, they should look at the whole picture. But they have to exercise judgment over material which is of first, second or even third hand hearsay as to the weight that can be attached to it. [29] In my judgment the problem in this case has really come about because Dr Naguib and, more particularly, Dr Annear, who has really been the main doctor in respect of treatment of the applicant, has given far too much weight to material that is of an extremely dubious nature. This late in the day, it is undesirable for me to go in great detail into all the matters about which I have particular concern. But one example is to be found in a statement in Dr Annear’s most recent report of 28th February of this year, when he says: “When [the applicant] first came into hospital, he had stated the tap water was poisoned.”

“What undoubtedly is necessary is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertion at the one end of the spectrum which is unlikely to have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on and answer that material. If that material includes evidence from a witness who gives oral testimony clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion.”

“Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole Board taking such evidence into account. It should normally be sufficient for the board to bear in mind that that evidence is hearsay and to reflect that factor in the weight which is attached to it. However, like the judge below, I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the individual case.”