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Session 2007 - 08 Publications on the Internet Judgments PDF Print Version 
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| Judgments - In Re CD (Original Respondent and Cross-Appellant) (Northern Ireland) Appellate Committee
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HOUSE OF LORDS SESSION 2007-08 [2008] UKHL 33 on appeal from: [2007] NICA 33
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE In re CD (Original Respondent and Cross-appellant) (Northern Ireland) Appellate Committee Lord Bingham Lord Scott of Foscote Lord Carswell Lord Brown of Eaton-under-Heywood Lord Neuberger of Abbotsbury Counsel Original Appellants: John Larkin QC Donal Sayers (Instructed by Field Fisher Waterhouse LLP London agents for Cleaver Fulton Rankin) Original Respondents: Gerald Simpson QC Desmond Hutton (Instructed by Madden & Finucane) Interveners Paul Maguire QC David Scoffield (Instructed by Crown Solicitor’s Office) Hearing date: 30 APRIL AND 1 MAY 2008 ON WEDNESDAY 11 JUNE 2008 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE In re C D (Original Respondent and Cross-appellant) (Northern Ireland) [2008] UKHL 33 LORD BINGHAM OF CORNHILL My Lords, 1. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell. I am in full agreement with it, and for the reasons that he gives would restore the order of the judge and dismiss CD’s application for judicial review. LORD SCOTT OF FOSCOTE My Lords, 2. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell. I am in full agreement with it, and for the reasons he gives I would allow the Commissioners’ appeal and dismiss the respondent’s application for judicial review. LORD CARSWELL My Lords, 3. The appellants in this appeal are the Life Sentence Review Commissioners (“the Commissioners”), who have a number of functions under the Life Sentences (Northern Ireland) Order 2001 (“the 2001 Order”) in relation to prisoners in Northern Ireland sentenced to imprisonment for life. Their major task is to decide whether and when to direct the release of such prisoners. On 3 August 2005 they decided not to direct the release of the respondent C D, who brought an application for judicial review of that decision. On 23 May 2006 Girvan J dismissed the application, but on 6 September 2007 the Court of Appeal (Kerr LCJ and Campbell and Higgins LJJ) allowed C D’s appeal and quashed the Commissioners’ decision. 4. The respondent was convicted on 16 September 1982 of murder and sentenced to imprisonment for life. He was released on 26 April 1996 on licence under section 23(1) of the Prison Act (Northern Ireland) 1953, the enactment then applicable. On 5 March 1997 he was arrested in consequence of an allegation by his niece G, then aged 13 years, of buggery, indecent assault and gross indecency. On 7 March 1997 his licence was revoked by the Secretary of State for Northern Ireland, acting under the powers conferred by section 23(2) of the 1953 Act. 5. Further allegations were made by G’s younger sister L and charges were brought against the respondent in respect of the complaint made by G. These charges were withdrawn by the Director of Public Prosecutions on 13 January 1998 and a direction was given by him that there should be no prosecution in respect of L’s complaint, apparently on the ground that it was not in the best welfare interests of the girls to require them to give evidence. The respondent remained in prison and between November 1998 and October 2000 his suitability for release received periodic consideration by the Life Sentence Review Board, a non-statutory body which advised the Secretary of State on the exercise of his power to release life sentenced prisoners on licence. The Board declined to recommend his release, on the ground that they considered that he had committed the offences of which his nieces had complained and there was a continuing risk that he might commit further similar offences if released. An application for judicial review of their decisions was brought by the respondent, but on 29 June 2001 the application was dismissed in a written judgment given by Nicholson LJ sitting in the Queen’s Bench Division. 6. The 2001 Order came into force on 8 October 2001 and the respondent’s case was referred to the Commissioners on 29 November 2001 under the provisions of article 11(5) and 9(4). It is convenient at this point to outline the material provisions of the Order. Part II provides for the appointment of the Life Sentence Review Commissioners, who are to advise the Secretary of State with respect to any matter referred to them by him which is connected with the release or recall of life prisoners and have the functions conferred by Part III. The “tariff", or that part of the life sentence considered appropriate to satisfy the requirements of retribution and deterrence, is under article 5 fixed by the sentencing court. Under article 6, as soon as a life prisoner has completed the tariff part of his sentence, the Secretary of State has to refer his case to the Commissioners, who must consider whether it is necessary for the protection of the public from serious harm that he should be confined. If they are satisfied that it is not so necessary, they are to direct his release, whereupon it is the duty of the Secretary of State to release him on licence. Articles 8 and 9 make provision for the duration of a life prisoner’s licence on release and for his recall to prison if so recommended by the Commissioners. Article 11 (5) applies to a life prisoner such as the appellant, who has been recalled to prison under section 23 of the Prison Act (Northern Ireland) 1953 but is not an existing licensee within the meaning of article 12. The case of such a prisoner is to be referred by the Secretary of State under article 9(4) to the Commissioners, who are to consider whether he should be released and direct accordingly. 7. The respondent’s case was so referred to the Commissioners on 29 November 2001 and there then commenced a long drawn-out process, the length of which was the subject of criticism by counsel for the respondent. I shall deal later with the causes of this delay in reaching a conclusion and it is sufficient to state at this stage that the hearing into the question of the respondent’s release was not completed until 15 June 2005, following which a considered decision in writing was given by the Commissioners on 3 August 2005. 8. In paragraph 3 of their decision the panel of Commissioners who decided the matter set out their approach to the task before them: “In our opinion, when Article 9 is read with Article 3(4), the Secretary of State must first prove on the balance of probabilities facts which, on the assumption that Mr [D] was released on the basis that there was no more than minimal risk of him committing serious harm, indicate that at the date of recall there was a significant risk of him committing serious harm. If, but only if, such facts are proved we must then go onto consider whether the risk posed at this point in time by Mr [D] is capable of being safely managed in the community and, if not, whether there are steps that might be taken with a view to reducing the current risk to a level that could, in the future, be safely managed in the community.” 9. The panel then went on to consider the allegations made by the complainants G and L against the respondent. Both had been interviewed by social workers and the interviews had been recorded on video, which the panel viewed. The panel received evidence from a range of witnesses, police officers, social workers, a forensic scientist, psychologists, a Probation Service Resettlement Manager and a prison governor. The respondent gave evidence on his own behalf and called witnesses in support of his case. Neither G nor L was called to give oral evidence. The Secretary of State felt that it was not appropriate to seek to have G attend on subpoena, in the light of her expressed unwillingness to give evidence. The panel explored the possibility of her attending voluntarily or of their directing the Secretary of State to subpoena her. Eventually it concluded that for the reasons set out in paragraph 13 of the decision it would be unreasonable to force her to give evidence even by way of a video link. 10. The respondent’s counsel argued in his closing submissions that the failure to summon G had unfairly deprived the respondent of having her evidence challenged directly in cross-examination. The panel indicated that even at that late stage it would favourably consider an application for adjournment to enable his solicitor to subpoena G, and that it would give leave for her to be questioned by counsel as if she had been called as a witness on behalf of the Secretary of State. No such application was made to the panel. They commented on this in paragraph 15 of their decision: “The panel has concluded that Mr Hutton’s approach to the issue of [G] being subpoenaed was a perfectly legitimate tactical manoeuvre by which he sought, on the one hand, to characterise the failure to subpoena [G] as unfair while, on the other hand, he sought to avoid being instrumental in securing her attendance at the hearing and giving evidence with the consequent danger of the case against Mr [D] being strengthened. The panel remains of the opinion, for the reasons given, that it would have been unreasonable to have directed that [G] be subpoenaed.” 11. The panel went on to hold that they were entitled to admit the video recordings and transcripts of the interviews of G and L, as they were not bound by the strict rules of evidence. They gave detailed consideration to the weight to be attached to their evidence, in the light particularly of any discrepancies appearing or the possibility of contamination as the result of discussion between the girls. The panel held that it was “clear beyond peradventure” that L had been sexually assaulted and regarded it as established also that G had been. They then considered seriatim three possible perpetrators of the abuse, who might have had the opportunity to assault the girls. They concluded on the evidence that none of them was the abuser. 12. They turned to consideration of the evidence against the respondent, discussing the explanation which he gave in his defence for the presence of semen on the floor of two rooms in the house where the children lived. The respondent claimed in his evidence that this was explained by his solitary masturbation in those rooms. The panel expressed the view that the respondent’s denials of abusing the girls were given in a most unconvincing manner. They considered that both his demeanour and the manner in which he gave his evidence suggested to them “inability to acknowledge guilt, rather than innocence.” 13. The conclusions reached by the panel on the evidence were set out in paras 49 and 50 of the decision: “49. We are satisfied on the balance of probabilities that Mr [D] sexually abused both [L] and [G] and that this abuse included the repeated and forcible anal penetration of both girls. Furthermore, it is our opinion that, as at the date of his recall, that conduct was indicative of a significant risk of him committing serious harm — for example, of the sort perpetrated on [L] and [G] — if he remained at large. 50. Mr Hutton submitted that because the conduct alleged against Mr [D] involved the commission of criminal offences we could only reach the conclusion we have reached if the case against Mr [D] was ‘compelling'. For our part we are uncertain as to what this adds to the requirement that we must be satisfied (as we are) on the balance of probabilities that Mr [D] committed the acts alleged against him. We understand the point made in Re H and Others [1996] AC 563 at 586 to the effect that the more serious the allegation the less likely it is that it occurred. But this had no bearing on the instant case. Here it is clear beyond peradventure that both girls were the victims of buggery. There is nothing inherently unlikely in a member of their family having been the perpetrator. Indeed, Ms Deirdre Mahon gave evidence to the effect that most children who are abused are abused by male relatives. We do not pretend that this was an easy case to decide, but for that very reason we gave every aspect of it most careful scrutiny and we are clear in our minds that Mr [D] committed the grave sexual assaults on [L] and [G] to which we have referred.” 14. The panel then considered the element of risk of the respondent committing further serious harm which would be involved in his release and decided that he should not be released at that stage. They expressed views on steps which might be taken towards a pre-release regimen and a community resettlement plan for the respondent, which have now been put into effect. They recommended the reference of his case back to the Commissioners in two years’ time, or earlier if his progress warranted it. 15. The respondent brought an application for judicial review of this decision, which was dismissed by Girvan J on 23 May 2006. The respondent’s case was presented on four main grounds: (a) The procedure adopted by the panel was unfair in that they did not require the attendance of G and L to give oral evidence which could be tested by cross-examination. (b) The panel were in error in failing to apply a higher standard of proof of the facts than the balance of probabilities. (c) There was a lack of sufficient causal connection between the deprivation of liberty of the respondent in consequence of his recall and his original conviction for murder, hence there was a breach of article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). (d) The delay in reaching a decision on the release of the respondent caused a breach of article 5(4) of the Convention. 16. The judge declined to accept any of these arguments. He held that the procedure adopted was not unfair and that there was sufficient causal connection between the murder committed by the respondent and his subsequent recall. He regarded the delay as being attributable very largely to the respondent’s side, and in any event since the detention had not been shown to be unlawful he had not suffered any loss of liberty. On the issue of standard of proof he held that the respondent had failed to persuade him that the panel had approached its decision-making in the wrong way or misconceived the issue as to the cogency of the evidence required. They were “clear” in their mind that the respondent had committed the “grave sexual assaults” and clearly considered the evidence of sufficient cogency to persuade them of such grave charges. 17. The Court of Appeal rejected all the grounds save one on which the respondent based his appeal. It agreed with Girvan J on the question of delay. It held that the procedure adopted by the panel “worked no unfairness” to the respondent. The court held, however, that the panel had applied the wrong standard of proof and that its decision accordingly must be quashed. It recognised that there is a single civil standard of proof, the venerable debate as to whether there was a third or intermediate standard between the civil and criminal standards having been put to rest by the decision in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. The court cited a passage from the opinion of Lord Nicholls of Birkenhead in that decision, to which I shall return, and stated in paragraph 37: “Mr Larkin claimed that the panel had in fact applied the principle articulated in this passage but we cannot agree with that submission in light of what was said in paragraph 50 of the decision. It is true that the panel acknowledged the existence of the principle but it proceeded then to explain why it considered that it should not be applied. It said that the ‘point made in Re H that the more serious the allegation the less likely it is that it occurred … had no bearing on the instant case’ because there was medical evidence that the girls had been sexually abused and that there was nothing inherently unlikely in a member of the family being the perpetrator bearing in mind that sexual abuse of children is most frequently carried out by male relatives. This betrays an incorrect approach, in our opinion. The improbability of the appellant having committed the offences is not eliminated simply because it can be shown that the complainants had been the victims of sexual abuse. As Girvan J pointed out, deliberate abuse by a family member is abnormal. It appears to us, therefore, that the panel should have recognised that the offences alleged against the appellant called for a flexible approach to the civil standard of proof requiring more cogent evidence than would be conventionally required.” 18. The court went on to say that the need to look for compelling evidence to discharge the burden of proof is not confined to the situation where it can be said that the commission of offences is inherently unlikely. After considering a passage from the judgment of Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, 498, para 64, it stated its conclusion in para 40: “If the panel considered that no higher quality of evidence than normal was required, the fact that the evidence was scrupulously examined and that the panel was clear in its conclusion cannot convert the proof against the appellant to a condition to which the panel believed it did not need to aspire. It is clear that the panel did not consider that a more compelling quality of evidence was required. For the reasons that we have given, we consider that this was necessary.” 19. The Court of Appeal heard a further application on behalf of the respondent on 4 December 2007, in which counsel sought to advance a claim for compensation on the basis that his continued detention following the quashing of the Commissioners’ decision was in breach of article 5(1) of the Convention. In view of the conclusion which I have reached on the appeal before the House, this issue will not arise and I do not propose to deal with it further. 20. The Commissioners’ appeal to the House was based on a challenge to the decision of the Court of Appeal on the issue of the standard of proof. The respondent cross-appealed on several grounds, that the procedure adopted had been unfair, that he had been unlawfully detained in breach of article 5(1) of the Convention and that the delay had caused a breach of article 5(4). 21. As I have said, I do not propose to give any further consideration to article 5(1). I agree with the courts below that there was a sufficient causal connection between the deprivation of the respondent’s liberty and his original conviction. On the complaint of unfairness of procedure, I am in agreement with Girvan J and the Court of Appeal. As the panel pointed out in paragraph 15 of its decision, counsel appearing for the respondent sought to obtain a tactical advantage by complaining of unfairness caused by the absence of G’s evidence while attempting to avoid having to call her, which would have carried the risk that the case against the respondent would be strengthened. The course adopted by the panel removed any validity which this complaint might have possessed. The panel did not require the respondent to call G as his own witness, which could have been a significant handicap. It offered him the facility to subpoena her to attend the hearing and then cross-examine her. This could not be described as disadvantageous to him, unless it were to be suggested that it might predispose G against the respondent if she felt aggrieved by the fact that it was he who caused her to be brought to give evidence. I do not consider that there is any real substance in this suggestion. G had made a complaint of serious sexual abuse against the respondent, which gave rise to a real grievance, and it can hardly have added significantly to her resentment if she had been required to give evidence against him. I accordingly do not consider that the procedure adopted was unfair to the respondent. Certainly it is a long way from restricting his access to the deciding tribunal in such a way or to such an extent that the very essence of the right is impaired: cf R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, 753-4, para 17, per Lord Bingham of Cornhill, citing Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393, 415, para 72. 22. I turn then to the main subject of the appeal before the House, the standard of proof applicable in a case such as the present. The Court of Appeal said in terms in the passages which I have quoted from its judgment that the “flexible approach to the civil standard of proof” required “more cogent evidence than would be conventionally required” and that “a more compelling quality of evidence” was needed. It was submitted by Mr Larkin QC on behalf of the appellants that this was a misunderstanding of the principles, which have now been settled if they were at any time in doubt, applying to the standard of proof. 23. Much judicial time has been spent in the last 50 or 60 years in attempts to explain what is required by way of proof of facts for a court or tribunal to reach the proper conclusion. It is indisputable that only two standards are recognised by the common law, proof on the balance of probabilities and proof beyond reasonable doubt. The latter standard is that required by the criminal law and in such areas of dispute as contempt of court or disciplinary proceedings brought against members of a profession. The former is the general standard applicable to all other civil proceedings and means simply, as Lord Nicholls of Birkenhead said in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, 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.” 24. Any confusion which has crept into the application of this principle appears to have stemmed from statements made in a number of earlier cases, which may have been misunderstood but certainly have not always been applied correctly. The earliest example appears to be Bater v Bater [1951] P 35, 37, in which Denning LJ referred to the necessity in the proof of fraud or some allegations requiring proof in a divorce case for “a higher degree of probability", not as high as in a criminal court but a degree of probability which is commensurate with the occasion. It is apparent from what Morris LJ said in Hornal v Neuberger Products Ltd [1957] 1 QB 247, when quoting this statement, that he did not regard it as laying down a more exacting standard than the balance of probabilities. He said at page 266: “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.” 25. The phrase “degree of probability” was picked up and repeated in a number of subsequent cases - see, for example, In re Dellow’s Will Trusts [1964] 1 WLR 451, 455, Blyth v Blyth [1966] AC 643, 669 and R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74, 113-4 - and may have caused some courts to conclude that a different standard of proof from the balance of probabilities or a higher standard of evidence was required in some cases. In so far as such misunderstanding has occurred, it should have been put to rest by the frequently-cited remarks of Lord Nicholls of Birkenhead in In re H (Minors). Immediately after the passage which I have quoted from his opinion, he went on at pages 586-7: “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 stepfather 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 … 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.” |
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