B e f o r e :
THE MASTER OF THE ROLLS
(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)
(Transcript of the Handed Down Judgment of
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Mr Paul Bowen (instructed by Bindmans) for the Appellant
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
HTML VERSION OF JUDGMENT
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Lord Justice Richards :
- This is the judgment of the court. The appellant, AN, is detained at Ashworth Hospital pursuant to a hospital order under section 37 the Mental Health Act 1983 ("the Act"). He is also subject to a restriction order under section 41. On 14 August 2004 the Mental Health Review Tribunal decided not to direct his discharge under section 73. AN brought judicial review proceedings to challenge that decision, contending that the tribunal had erred in its approach to the standard of proof. The challenge was dismissed by Munby J in a lengthy judgment handed down on 11 April 2005. Permission to appeal to this court was granted on the basis that Munby J's judgment was likely to be applied by tribunals hearing applications around the country and there were compelling reasons why the court should consider whether that judgment was correct.
- There were in fact two applications for judicial review before Munby J. The other application was brought by an applicant called DJ, who was also detained under section 37 but who was not the subject of a restriction order under section 41. In his case, because there was no restriction order, the decision not to direct discharge was made under section 72 rather than section 73. Munby J dismissed that application too, for materially identical reasons. DJ had been discharged from hospital prior to the hearing before Munby J and does not pursue an appeal. It is necessary, however, to consider the position under section 72 as well as section 73, since the two sections are closely related and the relevant principles are common to both.
The statutory framework
- Before the Crown Court or a magistrates' court can make a hospital order under section 37(1) of the Act, the conditions in section 37(2) must be satisfied. By section 37(2):
"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."
- A restriction order under section 41 imposes special restrictions upon a patient's release. The circumstances in which such an order can be made are set out in section 41(1):
"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'."
- Applications for discharge are made to the tribunal. An application by a patient subject to a hospital order but not subject to a restriction order is made under section 66. An application by a patient who is also subject to a restriction order is made under section 70. The relevant powers and duties of the tribunal are set out in sections 72 and 73 respectively.
- Section 72 provides, so far as material:
"(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 …."
- Section 73 provides, so far as material:
"(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."
- Under both section 72 and section 73 the tribunal must direct discharge if it is not satisfied as to the specified matters. Thus the burden is on the detaining authority to satisfy the tribunal as to those matters. Prior to November 2001 there was a burden on the patient to establish that at least one of the criteria for his continued detention was not satisfied, and thus to disprove the lawfulness of his detention. In R (H) v. London North and London East Region Mental Health Review Tribunal  EWCA Civ 415,  QB 1, the Court of Appeal held that such provisions were contrary to article 5 of the European Convention on Human Rights and granted a declaration of incompatibility under section 4 of the Human Rights Act 1998. Sections 72 and 73 in their present form embody the legislative changes that were made in response to that ruling.
The tribunal's consideration of AN's case
- The background to AN's case was summarised as follows in para 5 of Munby J's judgment:
"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."
- The evidence placed before the tribunal included that of Dr Mulligan, who was AN's responsible medical offer and a consultant forensic psychiatrist; Dr McInerney, a consultant forensic psychiatrist instructed by the Home Office; and Dr Ireland, a chartered forensic psychologist employed by Ashworth. All three supported the view that the criteria for detention continued to be met. Evidence in support of AN's application for discharge was given by three independent consultant forensic psychiatrists: Dr Williams, Dr Lomax and Professor Sashidharan.
- For the purposes of its decision under section 73, and in the light of the evidence before it, the tribunal had to determine the following issues:
(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.
- The tribunal's findings on those four issues meant that it was satisfied as to all the criteria for continued detention. That made it unnecessary for it to consider a further issue under section 73(1)(b) as to the appropriateness of AN remaining liable to be recalled for further treatment, though it was in fact conceded by AN that, if discharged, he should remain so liable and that his discharge should be subject to conditions. A final issue, which is not material for present purposes, was whether, if it did not direct discharge, the tribunal should make a non-statutory recommendation for transfer to conditions of lesser security: at paras 11-12 it recommended a trial move to a medium secure unit.
- The tribunal had been addressed by counsel for AN on the question of standard of proof, though the submissions were much less elaborate than those now made to this court. In para 1 of its reasons the tribunal set out the approach it had adopted in reaching its decision:
"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 correctness of that approach was the question for determination in the judicial review proceedings.
The judgment of Munby J
- In addition to submissions from those who have appeared before us, Munby J heard submissions from counsel for MIND. MIND had filed evidence in the form of statements by a number of mental health professionals identifying a variety of concerns. There were said to be uncertainties among practitioners as to the appropriate standard of proof, and a lack of consistency between tribunals. There were also concerns about the basing of decisions on hearsay evidence, linked with a perception on the part of some that tribunals tended to prefer the evidence of professional witnesses over the evidence of the patient even if the patient was the only person present with personal knowledge of the matter in dispute. The more a patient protested that something had been wrongly recorded in his notes, the more he might be faced with the accusation that he was failing to take responsibility for his actions and failing to acknowledge the "truth". One of the suggestions was that the imposition of a higher standard of proof was necessary to protect patients from those supposedly undesirable practices.
- Having set out the background, Munby J identified two main issues (para 23). The first related to the standard of proof to be applied by the tribunal, in so far as the concept of "proof" was relevant. The second related to the question of whether and to what extent the nature of the task upon which the tribunal was engaged involved a standard of proof at all.
- On the first issue, the judge started (at paras 24-29) with what he described as some basic or general principles and with some obiter dicta in existing authorities to the effect that the standard of proof in this statutory context is the balance of probabilities. He then examined and rejected (at paras 30-47) the primary case advanced before him on behalf of AN and MIND, that the relevant standard was the criminal standard of proof beyond reasonable doubt rather than the civil standard of proof on a balance of probabilities. He looked next (at paras 49-71) at the alternative case advanced by AN and MIND that, if the relevant standard of proof was not the criminal standard, it was or ought to be the standard of "clear and convincing evidence" applied by the US Supreme Court in Addington v. Texas (1979) 441 US 418. It was held in Addington v. Texas that to commit an individual to a mental institution in civil proceedings, the state was required by the "due process" clause of the US Constitution to prove by clear and convincing evidence the statutory preconditions to commitment. That was an intermediate standard, between proof beyond reasonable doubt and proof on the preponderance of the evidence, which was held to strike a fair balance between the rights of the individual and the legitimate concerns of the state. Whilst quoting extensively from Addington v. Texas, Munby J stated that English law did not recognise the intermediate standard and that the case did not assist AN or MIND. He also examined various decisions of the English and Strasbourg courts on the application of the ECHR, and various Commonwealth authorities, all of which he likewise found not to assist.
- Following that exegesis of the authorities, the judge expressed his conclusion on the first issue as follows:
"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."
- He added that in the not wholly dissimilar context of the Parole Board the civil standard had been held to apply and he could think of no good reason why the tribunal should adopt a different standard from that applied by the Parole Board: both bodies had to conduct very similar exercises in not very different contexts.
- Munby J then moved to consider (at paras 75-116) the second main issue, namely the extent to which the nature of the task on which the tribunal was engaged involved a standard of proof at all. He referred to the subtlety and complexity of the task faced by doctors and tribunals when considering issues of the kind identified by sections 72 and 73, and to the position of patients who are subject to restriction orders, where it is necessary to balance the interests of the patient against those of public safety. He described the procedure of the tribunal as being to a significant extent inquisitorial, referred to authorities on the proportionality balancing exercise, and observed that in approaching its task the tribunal must use its expertise and look at the reality of the situation. At para 87 he stated:
"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."
- He referred to analogous situations, including the work of the Parole Board and the assessment of danger to national security in deportation cases. He then returned specifically to sections 72 and 73 and expressed his conclusions as follows:
"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."
- The judge acknowledged that the burden (which he thought it more accurate and appropriate to describe as the "onus" or "persuasive burden") lay on the detaining authority to establish all the relevant criteria, but did not consider this to affect his conclusion. He observed that the fact that an applicant has the burden of persuading the court of something before he can obtain the order he seeks does not of itself mean that he necessarily has to persuade the court of that "something" to some standard of proof: it all depends upon the particular statutory or other context. Likewise he observed that the mere fact that a statute requires a court to be "satisfied" of something before it makes an order does not mean that it necessarily has to be satisfied to the civil standard of proof: it all depends upon the nature of the matter about which the court has to be satisfied.
- The judge held that if, in relation to the issues that the tribunal has to decide, a specific allegation of past conduct is relied on, the tribunal must decide as a matter of fact, and applying the ordinary civil standard of proof, whether the allegation has been proved: if it is not proved, then it cannot of itself be the basis for any continuing detention of the patient. But however many allegations of past conduct may fail to be proved, this does not mean that the tribunal is bound to order the patient's discharge. For the tribunal is looking to what may happen in the future rather than to what has happened in the past. It must examine the case as a whole, recognising that the range of facts which may properly be taken into account is infinite; it must attach appropriate weight to all the relevant facts when coming to an overall conclusion; and it must reach an assessment or judgment on the particular issue by asking itself whether or not, adopting a global approach and having regard to the cumulative effect of all the relevant facts, it is satisfied.
- The judge then set out the questions that the tribunal must ask itself when considering applications under section 72 and section 73, and what he considered to be the "default position" under each:
"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."
- In the last part of his judgment (from para 121) Munby J considered the concerns expressed by MIND about the approach of tribunals to the assessment of evidence, in particular hearsay evidence, and gave guidance on the approach that should be adopted. He emphasised that a decision under section 72 or 73 is a matter of extreme gravity not merely for the patient but also for the general public. On the one hand are the patient's claims not merely to liberty but also to autonomy and bodily integrity. On the other hand there are powerful interests that may pull in the other direction: not merely the public interest in safety, but also the patient's own interest in treatment which may protect him from the risk of harm or self-harm and may remove or reduce the prospect of future compulsory detention. The judge concluded by saying that bearing in mind the gravity – typically both for the patient and for the public – of the issue with which it is grappling, the tribunal will always want to bring to its task particular care and consideration and will want to scrutinise the evidence with especial care.
- The overall conclusion expressed in para 137 of the judgment was that the only misdirection by the tribunal in the case of AN was favourable to the patient and that the application for judicial review must be dismissed.
The issues on the appeal
- There are three 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?
- To the extent that Munby J's judgment ranged more widely than those issues, it has not been the subject of consideration in argument before us.
Issue (1): standard of proof
The appellant's case
- Mr Bowen submits that Munby J was wrong to hold that the applicable standard of proof is "the ordinary civil standard of proof 'on a balance of probability'" (para 71). Equally, the obiter dicta in Reid v. Secretary of State for Scotland  2 AC 512, 539 and R (H) v. London North and East Region Mental Health Review Tribunal  QB 1 at para 32, to the effect that proof is on a balance of probabilities, are mistaken. The issue of standard of proof in this context has not previously been the subject of a considered decision.
- Drawing on an article by Dr Mike Redmayne, Standards of Proof in Civil Litigation (1999) MLR 167, and observations of Burger CJ in Addington v. Texas (cited above), Mr Bowen submits that the ordinary civil standard of proof on the balance of probabilities represents an equal sharing (50:50) of the litigation risk between the parties, on the basis that the same utility may be ascribed to one party wrongly (i.e. unjustly) winning a case as to another wrongly losing it. The criminal standard, on the other hand, places almost the entire litigation risk on the state, on the basis that there is an interest of transcending value at stake (the liberty of the accused) and society places a much higher value upon ensuring that the innocent are not convicted than it does upon ensuring that the guilty are convicted.
- Mr Bowen submits that there are, however, many circumstances in which an interest of transcending value falls to be determined in a civil context where an equal sharing of the litigation risk is not appropriate. The common law has long recognised that in certain contexts the ordinary civil standard of proof may accordingly require modification, as where serious allegations of a criminal nature are made in civil cases or the consequences of a finding one way or the other will be particularly grave for the individual concerned, for third parties or for the general public. In some cases more than one such feature may exist and the competing utilities of the individual's rights and those of third parties or the wider public interest may have to be balanced.
- Mr Bowen suggests that four different solutions have been adopted as regards the standard of proof in such cases:
(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.
- Reference is also made to the "convincing evidence" standard ("convincingly established") that has been applied by the ECtHR when determining whether an interference with various qualified rights under the ECHR is necessary and proportionate. The same approach has been adopted by the ECtHR, and in this jurisdiction by the Court of Appeal in R (N) v. M  1 WLR 562, in determining whether there is a medical necessity for compulsory medical treatment that would otherwise amount to a violation of article 3. It is submitted that, although the question has not been directly answered in the Strasbourg case-law, the same standard should apply under article 5 to the justification of a detention in hospital on grounds of unsoundness of mind.
- By analogy with those situations where a higher standard of proof has been held to be appropriate (quasi-criminal cases, disciplinary proceedings, contempt proceedings) and by reference to the approach adopted in other common law jurisdictions, it is submitted that the transcending values of liberty and autonomy are such that the social cost of erroneous detentions must be seen as greater than that of erroneous decisions to release. While the potential cost of erroneous decisions to release is that patients so released will harm themselves or others, in the generality of cases that is an extremely small risk.
- In these circumstances it is submitted that a higher than ordinary civil standard of proof should be applied to decisions under sections 72 and 73. In the course of his submissions Mr Bowen put forward various formulations of an appropriate self-direction by the tribunal. By the end of his reply he had refined them into four possibilities, all of which were said to meet the requirements of fairness and of article 5, though the first was preferred: (i) the tribunal must be satisfied to a high degree of probability that the criteria for detention are made out; (ii) the tribunal must be so satisfied by convincing evidence; (iii) the tribunal must be so satisfied by clear and convincing evidence; and (iv) the tribunal must be so satisfied to the civil standard of proof with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.
The main English authorities
- We think it helpful to start by looking at the main English authorities chronologically rather than by reference to the classifications adopted by Mr Bowen, though we leave to one side, for the time being, the cases dealing specifically with the ECHR.
- Bater v. Bater  P 35 concerned a wife's petition for divorce on the ground of cruelty. The Court of Appeal held that it was not a misdirection for the trial judge to have stated that the petitioner must prove her case beyond reasonable doubt. Bucknill LJ, with whom Somervell LJ agreed, considered that "a high standard of proof" was required because of the importance of such a case to the parties and the community. Denning LJ stated (at pages 36-37):
"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."
- The issue in Hornal v. Neuberger Products Ltd.  1 QB 247 was the standard of proof in a civil claim for fraudulent misrepresentation. The Court of Appeal held that the trial judge had directed himself correctly by reference to the balance of probability. Denning LJ referred back to the views he had expressed in Bater v. Bater. Hodson LJ expressed his complete agreement with those views, adding (at page 264):
"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."
- Morris LJ's observations (at page 266) are particularly illuminating:
"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. …"
- The factual background to In re Dellow's Will Trusts  1 WLR 451 was that a husband and wife, having made mutual wills each leaving their estate to the other, had been found dead in their home from coal gas poisoning. The husband was presumed to have died first. The question then arose as to whether the wife had feloniously killed him. As regards the standard of proof, Ungoed-Thomas J referred to the observations of Morris LJ in Hornal v. Neuberger Products Ltd. and continued (at pages 454-455):
"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."
- The issue in Blyth v. Blyth  AC 643 was the standard of proof applicable to the question whether adultery had been condoned. The House of Lords held by a majority that it was the balance of probability. Lord Denning, referring back to Bater v. Bater and to Hornal v. Neuberger Products Ltd, said this (at page 669):
"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).
- In R v. Secretary of State for the Home Department, ex p. Khawaja  AC 74 it was held by the House of Lords that, on an application for judicial review of an order detaining a person as an illegal entrant, it was for the executive to prove to the satisfaction of the court, on the balance of probabilities, the facts relied on by the immigration officer as justifying his conclusion that the applicant was an illegal entrant. Lord Scarman dealt at length with the standard of proof. Having cited Bater v. Bater, Hornal v. Neuberger Products Ltd., In re Dellow's Will Trusts and Blyth v. Blyth, he continued (at pages 113F-114C):
"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."
- Lord Fraser expressed agreement with Lord Scarman on that issue, stating (at page 97G):
"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."
- Similarly, Lord Bridge, with whom Lord Templeman expressed agreement, concluded (at page 124E):
"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."
- The next authority in the chronological sequence is one of central importance. In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 concerned section 31 of the Children Act 1989 which, in summary, empowers the court to make an order placing a child in the care of the local authority if satisfied that the child (i) is suffering significant harm or (ii) is likely to do so. The mother in that case had four children, all girls. The local authority applied for a care order in respect of the three youngest girls, basing its application solely on allegations of sexual abuse of the eldest girl. The House of Lords held by a majority that, just as there must be facts, properly proved to the court's satisfaction if disputed, on which the court can properly conclude that a child "is suffering" harm, so too there must be facts from which the court can properly conclude that a child "is likely to suffer" harm (i.e., as was also held, that there is a real possibility that the child will suffer harm in the future); and here too, if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue.
- That is the context within which their Lordships considered a further issue, as to the standard of proof required to prove relevant facts, such as the allegations of sexual abuse on which the application was founded. On that issue Lord Nicholls stated, in a passage at pages 586C-587E that we think it necessary to quote almost in full:
"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."
- Lords Goff and Mustill agreed with Lord Nicholls. Lord Browne-Wilkinson, although dissenting in part on other issues, agreed with Lord Nicholls that "the standard of proof is the ordinary civil standard, i.e. balance of probabilities" (page 572E).
- In re H was considered in Secretary of State for the Home Department v. Rehman  1 AC 153, which concerned the making of a deportation order under section 3(5)(b) of the Immigration Act 1971 on the ground that deportation would be conducive to the public good in the interests of national security. The Special Immigration Appeals Commission held that the Secretary of State had not established to a high degree of probability that the applicant had been or was likely to be a threat to national security. The Court of Appeal allowed the Secretary of State's appeal. The House of Lords, in upholding the Court of Appeal's decision, held that the concept of standard of proof was not applicable to the evaluation of whether the risk to national security was sufficient to justify deportation, but that where past acts were relied on they should be proved to the civil standard of proof. As to that, Lord Hoffmann stated:
"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."
- Lords Clyde and Hutton agreed with Lord Hoffmann. Lord Slynn, with whom Lords Steyn and Hutton agreed, referred simply to the need to prove facts "to the civil standard of proof" (para 22).
- In view of the submissions made by Mr Bowen, we should note that Ex p. Khawaja was not cited to the House of Lords in In re H (though all the other cases that we have mentioned so far in this chronological survey were), but that it was cited in Rehman.
- The next case to consider is B v. Chief Constable of Avon and Somerset Constabulary  1 WLR 340, which arose out of an application to the magistrates' court for a sex offender order under section 2 of the Crime and Disorder Act 1998. On such an application it must be proved that the conditions mentioned in section 2(1) are fulfilled, namely "(a) that the person is a sex offender; and (b) that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him". The Divisional Court held that such an application was properly characterised as a civil, not a criminal, proceeding and that the justices were accordingly required to apply the civil standard of proof. As to that standard, however, Lord Bingham CJ, giving the leading judgment, went on to observe:
"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."
- It should be noted that, although earlier cases were referred to in para 30 of Lord Bingham's judgment, neither In re H nor Rehman was cited to the court.
- The subject matter of Gough v. Chief Constable of the Derbyshire Constabulary  QB 1213 was an application to a magistrates' court for a banning order under section 14B of the Football Spectators Act 1989. The Court of Appeal held that proceedings under that section were civil in character. As regards the standard of proof, however, Lord Philips MR, giving the judgment of the court, stated:
"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."
- Lord Phillips referred in para 90 to the decision of the Court of Appeal in R (McCann) v. Manchester Crown Court. McCann was the subject of a further appeal to the House of Lords, whose decision is reported at  1 AC 787. The case concerned an application to the magistrates' court for anti-social behaviour orders under section 1 of the Crime and Disorder Act 1998. Again this was held to be a civil proceeding. Nevertheless their Lordships went on to hold that the standard of proof to be applied to allegations about the defendants' past behaviour was the criminal standard. Lord Steyn stated:
"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. …"
- Lord Hope gave the following reasons for endorsing the approach of applying 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."
- The other members of the House in McCann agreed with Lord Steyn and Lord Hope.
- Finally in this chronological survey, reference should be made to the decision of the Privy Council in Campbell v. Hamlet  UKPC 19. In that case there had been a finding of professional misconduct by an attorney. One of the issues on the appeal was the correct standard of proof to apply to such proceedings. At para 14 of the judgment, Lord Brown stated that their Lordships entertained no doubt that the criminal standard was the correct standard. He continued:
"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."
- He then referred with evident approval, at paras 17-19, to passages that we have already cited from B v. Chief Constable of Avon and Somerset Constabulary, Gough v. Chief Constable of the Derbyshire Constabulary and R (McCann) v. Crown Court at Manchester in which it was indicated that, in the situations there under consideration, the civil standard of proof would for all practical purposes be indistinguishable from the criminal standard.
- We have set out those authorities in chronological order because, in our judgment, it helps to show that Mr Bowen's submissions seek to impose an unwarranted straitjacket of classification upon them. Certainly there are differences in the language used and the rationalisations given over time; but the essential point that runs through the authorities is that the civil standard of proof is flexible in its application and enables proper account to be taken of the seriousness of the allegations to be proved and of the consequences of proving them.
- Whatever differences in expression there have been over time, it was laid down clearly by the House of Lords in In re H and Rehman that in English law the civil standard is one single standard, namely proof on the balance of probabilities (or preponderance of probability). The other standard is the criminal standard of proof beyond reasonable doubt. There is no intermediate standard, nor is the civil standard to be broken down into sub-categories designed to produce one or more intermediate standards. (We leave out of account for the purposes of this analysis the standards applicable in certain specific statutory contexts, such as a "reasonable likelihood" of persecution in asylum cases. The present case is governed by the general rules.)
- We reject Mr Bowen's contention that the decision in In re H might have been different if Khawaja had been cited in it. Lord Nicholls in In re H considered his approach substantially to accord with that in Hornal, which was approved in Khawaja and which Mr Bowen would place in the same category as Khawaja. In any event Khawaja was cited in Rehman, where In re H was followed. The point might equally be made that In re H, in turn, was not cited in B or Gough, though it was in McCann, and that Rehman was not cited in any of those three cases. In our view, however, this does not mean that successive cases have been decided per incuriam or that the law has been getting into a state of confusion. Full citation of earlier authorities has not been necessary in these cases, for the very reason that their broad thrust has been the same (albeit that, as we explain below, slightly different language might sometimes have been used if In re H had been cited in some of the more recent cases).
- Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.
- The flexibility that exists in the application of the standard is clear from In re H itself, where Lord Nicholls, whilst affirming the existence of a single civil standard, stressed that it had "a generous degree of flexibility" in respect of the seriousness of the allegation (page 586F – see also his reference, at page 587E, to "the in-built flexibility already mentioned").
- It is true that the rationalisation put forward in In re H and followed in Rehman focused on the seriousness of the allegation rather than on the seriousness of the consequences if the allegation is proved. The reasoning was that the more serious the allegation the less likely it is that the event occurred, and 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. In general, the seriousness of an allegation is a function of the seriousness of its consequences, and vice versa, so that the rationalisation in In re H and Rehman will take due account of the seriousness of the consequences if an allegation is proved. We accept Mr Bowen's submission, however, that there will be cases where proof of an allegation may have serious consequences even though it cannot be said that the matter alleged is inherently improbable. It seems to us that the same general approach must apply in such cases, even though the rationalisation put forward in In re H does not readily accommodate it. The more serious the consequences, the stronger the evidence required in practice to prove the matter on the balance of probabilities.
- In terms of outcome, and however difficult it may be to accommodate it within his reasoning, that conclusion accords with the way in which Lord Nicholls evidently thought of the matter in In re H. The alternative, intermediate standard which he formulated for consideration but then rejected was "commensurate with the gravity of the allegation and the seriousness of the consequences" (page 587E, emphasis added). In rejecting it, however, he doubted whether in practice it would add much to the balance of probability standard. Moreover Morris LJ in Hornal, with whose judgment Lord Nicholls considered his own approach substantially to accord, was plainly of the view that the seriousness of the consequences, whether for liberty or reputation, was a matter to be taken into account when deciding on the balance of probabilities (see the latter part of the passage quoted at para 39 above).
- The more recent cases provide uniform confirmation of the need to take account of the seriousness of the consequences or implications of what has to be proved when applying the civil standard: see B v. Chief Constable of Avon and Somerset Constabulary at para 30, Gough at para 90 and McCann at para 83. The relevant passages are set out above and we do not need to repeat them.
- Some of the language used in those cases might be thought to have the potential for confusion. For example, Lord Bingham said in B v. Chief Constable of Avon and Somerset Constabulary that the civil standard of proof "does not invariably mean a bare balance of probability" (para 30), and Lord Steyn referred in McCann to "the heightened civil standard" (para 37). Such observations are an echo of references in some of the earlier cases to higher degrees of probability being required where the allegations are more serious. In Rehman, however, Lord Hoffmann took issue with that kind of language, which does not sit comfortably with a single standard of balance of probabilities. If Rehman had been cited in the later cases, or indeed if In re H had been cited in B v. Chief Constable of Avon and Somerset Constabulary, it may well be that different words would have been used. But in our view it is only a matter of words. We do not think that anything said in the later cases affects the substance of the position as set out in In re H and Rehman.
- In all of this we take comfort from Morris LJ's observations in Hornal, quoted at para 39 above, that it may well be that no clear-cut logical reconciliation can be formulated in regard to the authorities, but perhaps they illustrate that "the life of the law is not logic but experience"; and that the words which are used to define the approach must be the servants not the masters of meaning.
- Although there remains a distinction in principle between the civil standard and the criminal standard, the practical application of the flexible approach demonstrated in the authorities means that they are likely in certain contexts to produce the same or similar results. Indeed, there are exceptional situations in which, for reasons of policy or pragmatism, the actual criminal standard is used in civil proceedings, as in contempt of court (In re Bramblevale Ltd.  1 Ch 128), the making of anti-social behaviour orders (McCann) or certain disciplinary contexts (Campbell). These are exceptions to the general rule. Mr Bowen has not argued before us that the mental health context constitutes a further exception in which the criminal standard applies, and we are sure he is right not to have done so.
- To recapitulate, we do not accept Mr Bowen's submission that the House of Lords in In re H somehow took a wrong turn, reflecting only one strand in the earlier case-law and resulting in the erroneous adoption of a fixed standard instead of a flexible standard; or that there is an irreconcilable conflict between In re H and later cases such as McCann. In re H is in line with the overall thrust of the case-law, whilst analysing the matter in terms of a single civil standard (balance of probabilities) which is to be applied flexibly according to the seriousness of the matters to be proved and the consequences of proving them. The reasoning in support of the adoption of a single standard may not provide a complete explanation of that flexibility in its application, but the seriousness of the consequences if a matter is proved is nonetheless a factor to be taken into account when deciding in practice whether the evidence is sufficiently strong to prove that matter on the balance of probabilities.
- We have not spent time on the Commonwealth authorities, such as Briginshaw, to which Mr Bowen referred us, but due account is taken of them in the English cases that we have examined. Although the US cases are of no direct assistance, since they were decided in the somewhat different context of the "due process" clause of the US Constitution and they lay down an intermediate standard which, as In re H makes clear, is no part of English law, they do focus on a similar problem and it seems to us that the "clear and convincing evidence" test in Addington v. Texas, the language of "reliably shown" or "convincingly shown" in the ECHR context, and the flexible application of the balance of probabilities standard may all lead to much the same result in practice.
The application of the standard of proof
- Given that the standard of proof is flexible in its application, there remains the question whether evidence of an especially high strength or quality is required to meet the standard in the context of sections 72 and 73 of the Act (to the extent that the issues arising under those sections are susceptible of proof to a defined standard at all). We take it as axiomatic, and it is not in dispute, that cogent evidence will in practice be required in order to satisfy the tribunal, on the balance of probabilities, that the conditions for continuing detention are met. But we would not put it any higher than that.
- As submitted by Mr McCullough on behalf of the tribunal, the mental health context is very different from other situations where individual liberty is at stake. The unwarranted detention of an individual on grounds of mental disorder is a very serious matter, but the unwarranted release from detention of an individual who is suffering from mental disorder is also a very serious matter. The decision of the US Supreme Court in Addington v. Texas, quoted extensively by Munby J at paras 51-57 of his judgment, is valuable for its discussion of the competing interests of the individual and the State in this area. The court concluded that the individual's interest was of such weight and gravity that clear and convincing evidence was required to justify his involuntary confinement. Although the court dealt with the matter in terms of an intermediate standard of proof, its reasoning is relevant to the strength of the evidence required in the flexible application of the English balance of probabilities standard. In our view it supports a requirement of cogent evidence but does not compel a more demanding evidential requirement than that.
- Several considerations weigh against pitching the evidential requirement unduly high. One of the points made by Burger CJ in rejecting the criminal standard of proof was that: "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." Furthermore the consequences that may flow from the release of a person suffering from mental disorder include not only a risk to the individual's own health and safety (e.g. self-harm, even suicide), but also a risk of harm to other members of the public. It is not to be forgotten that a person whose case is being considered under section 73 was detained in the first place pursuant to a hospital order under section 37 following conviction for a criminal offence, often an offence of violence: the appalling facts of AN's own case are very much in point. Some of those whose cases are considered under section 72 will also have been detained pursuant to section 37. All those factors are taken into account in the operation of the statutory machinery under the 1983 Act.
- The matter is expressed very well by Munby J at para 71 of his judgment. In the continuation of the passage quoted at para 18 above, the judge said:
"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.
- Turning to the actual decision in the present case, the tribunal was faced with competing expert opinions as to whether AN was suffering from a psychopathic disorder within the meaning of the Act. Directing itself by reference to the balance of probabilities, it gave a reasoned basis for preferring one group of experts over the other, concluding in effect that the diagnosis of psychopathic disorder was more likely than not to be the correct one. The body of evidence it preferred was plainly cogent and it is clear from the tribunal's reasons that its preference was reasonably clear-cut. The tribunal's approach cannot be faulted. The position would have been the same, however, even if both sets of competing opinions could fairly have been described as cogent and the decision between them had been a finely balanced one. We do not think that more is required than that the decision is based on cogent evidence which is accepted as correct on the balance of probabilities. It is not necessary, for example, for one body of evidence to have a much higher degree of cogency before it can be accepted on the balance of probabilities.
- The same general considerations apply to the determination of other disputed issues of fact such as whether the patient has behaved in a particular way or said a particular thing in the past. The tribunal was wrong to adopt a standard of proof "akin to the criminal standard" (though, as Munby J held, it was an error favourable to AN and cannot help him in these proceedings). The tribunal's approach not only expresses the standard of proof incorrectly, but also suggests an evidential requirement higher than is appropriate for the proper application, in the present context, of the correct standard of proof. As regards the cogency of evidence required, we see no reason to disagree with the guidance given by Munby J at paras 121 et seq. of his judgment, where he dealt in particular with the evaluation of hearsay evidence; though we should stress that the detail of the points covered in that part of the judgment has not been the subject of argument before us.
Conformity with the ECHR
- In our judgment, the conclusion we have expressed above is in full conformity with the requirements of the ECHR.
- In determining whether a detention on grounds of mental illness complies with article 5, the ECtHR has consistently applied the test laid down in Winterwerp v. Netherlands (1979) EHRR 387. For example, in HL v. United Kingdom (application no. 45508/99, judgment of 5 October 2004), the court stated at para 98:
"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).
- It seems to us that full effect is given to the Winterwerp test by the application of a standard of proof on the balance of probabilities and a recognition that cogent evidence will in practice be required to meet that standard. We note, too, that in Reid v. United Kingdom (2003) 37 EHRR 9, where the court repeated the Winterwerp test (see para 70 of the judgment), there was no suggestion that the standard of proof on the balance of probabilities was inappropriate or incompatible with the requirements of the ECHR, even though the court gave specific consideration to the two cases containing obiter dicta in support of that standard, namely Reid v. Secretary of State for Scotland and R (H) v. London North and East Region Mental Health Review Tribunal.
- Mr Bowen has cited cases concerning the standard of proof required in other ECHR contexts. For example, in R (N) v. M  1 WLR 562 it was common ground, in the light of the decision of the ECtHR in Herczegfalvy v. Austria (1992) 15 EHHR 437, that the standard of proof for the purposes of determining whether medical treatment to which the patient does not consent is compatible with article 3 is that the medical necessity has been "convincingly shown": see the judgment of the Court of Appeal at para 17. At para 18 the court rejected a contention that the test was in effect the same as the criminal standard of proof, stating that no useful purpose is served by importing the language of the criminal law, that the phrase "convincingly shown" is easily understood and that the standard is a high one but it does not need elaboration or further explanation. In R (B) v. Dr SS  EWHC 1936 (Admin), Charles J considered, but left open, the relationship between the "convincingly shown" standard adopted in R (N) v. (M) and the decision of the House of Lords in In re H as to the civil standard of proof in English law. He proceeded on the basis of the "convincingly shown" standard, treating it (as the parties had apparently agreed) as lying between the English civil standard and criminal standard.
- Although the "convincingly shown" standard is arguably different from "reliably shown" and it is not necessary to decide whether that is so or not for the purposes of this appeal, it seems to us, as indicated above, that they are not likely to produce materially different results from each other or from the "clear and convincing evidence" test in Adddington v. Texas. Indeed, it seems to us to be desirable, so far as possible, for one single (though flexible) approach to be adopted for these different problems in the civil law.
- However that may be, the language of "reliably shown" has been consistently applied under the ECHR for many years in the context of detention on grounds of mental health. It must be taken as the correct test, and the application of the standard of proof on the balance of probabilities in the way we have described is capable of meeting it.
Issue (2): issues susceptible to proof to the defined standard
- All parties accept that Munby J was right to hold that, whatever standard of proof is determined under issue (1) to be the correct standard in this context, it can and should be applied to the question whether a person is suffering from a mental disorder within section 72(1)(b)(i) (including, as we understand the concessions, the nature and degree of that disorder) and to any issue of past conduct that the tribunal may have to determine.
- Mr Bowen submits, however, that the judge was wrong to hold that the remaining issues under sections 72 and 73 are not susceptible to proof to a defined standard but are to be determined by a process of evaluation and judgment. His case is that the same standard of proof is applicable to the tribunal's determination of all the issues that arise under those sections.
- This question is not governed by any binding authority, though Mr Bowen draws support from obiter dicta in two cases. In Reid v. Secretary of State for Scotland, Lord Clyde evidently considered there to be a burden on the patient to satisfy the decision-maker on the balance of probabilities as to each of the conditions contained in the Scottish equivalent of section 72 (see p.539F). The case pre-dated the amendment to the Act which placed the burden of proof on the detaining authority; but whether an issue is susceptible to proof to a particular standard should not depend on where the burden of proof lies. There was, however, no argument on the standard of proof or its scope. Similarly, in R (H) v. London North and East Region Regional Mental Health Review Tribunal the Court of Appeal referred in general terms to the relevant conditions being demonstrated on a balance of probability (see para 32 of its judgment), but again this was obiter and there was no argument on the point.
- In developing his submissions, Mr Bowen takes as his starting-point the proposition that there is a burden on the detaining authority to satisfy the tribunal that the conditions for detention are met. The existence of that burden is common ground and is supported by R (H) v. London North and East Region Mental Health Review Tribunal and by the decision of the ECtHR in Reid v. United Kingdom (at least to the extent that the issues that arise under sections 72 and 73 are also within the scope of article 5 ECHR). The existence of the burden is unaffected by the fact that aspects of the tribunal's procedures are inquisitorial in nature (for example, the requirement of a medical examination by the medical member of the tribunal and the power to require the attendance of witnesses and to call for further information).
- Mr Bowen's essential argument is that where there is a burden of proof, there must be a corresponding standard of proof. If no standard applies, then there is in truth no burden of proof. It makes no sense to talk in terms of a burden of proof unless there is a standard by reference to which the matter must be proved; and if a standard does apply, it must be the same standard as that held to apply to the determination of issues of fact.
- We are not persuaded by the logic of that argument. It is inherent in the statutory language that the detaining authority has to satisfy the tribunal that the relevant conditions are met: "the tribunal shall direct the discharge of a patient … if they are not satisfied" as to the appropriateness and necessity, etc., of continuing detention. If the authority fails to satisfy the tribunal as to any of the conditions, the tribunal must order discharge. Thus the authority has the burden of persuading the tribunal to form the requisite judgments. Munby J preferred to describe this as an onus or persuasive burden (see para 106 of his judgment). Whether or not one prefers that language, the point of substance is the same. The existence of a burden does not mean that there must be a particular standard of proof in play.
- The point can be illustrated by reference to McCann, upon which the judge relied as authority at the highest level against Mr Bowen's argument. We have already explained that McCann concerned applications for anti-social behaviour orders. Such an application is made by a local authority to a magistrates' court. Section 1(4) of the 1998 Act provides that "if, on such an application, it is proved that the conditions mentioned in subsection (1) are fulfilled", the court may make an order. The conditions in subsection (1) are "(a) that the person has acted … in an anti-social manner …; and (b) that such an order is necessary to protect persons … from further anti-social acts by him". Having held that pragmatism favoured the adoption of the criminal standard of proof under section 1, Lord Steyn continued (at the end of para 37):
"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.
- Mr Bowen seeks to deflect the force of McCann by submitting, as a matter of inference, that their Lordships considered that neither a burden nor a standard of proof was applicable under section 1(1)(b). That cannot be right. It is plain from the terms of section 1(4) that there is a burden on the local authority to prove that the conditions in section 1(1) are met. The effect of McCann is that, in order to prove that the condition in section 1(1)(b) is met, the local authority must persuade the court to form a judgment that an order is "necessary". Standard of proof does not come into it, but there is still a burden of proof.
- There are other statutory contexts in which it has been held that the concept of standard of proof is inapplicable or unhelpful in relation to questions of judgment or evaluation, especially as regards the assessment of future risk.
- Munby J, at paras 91-93 of his judgment, cited passages from the decisions of the Court of Appeal and the House of Lords in Rehman. A sufficient flavour is given by this passage from the speech of Lord Hoffmann (at para 56):
"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."
- It must be borne in mind that in Rehman the primary decision-maker was the Secretary of State, who had to form an executive judgment as to whether there was a danger to national security, and that the House of Lords was considering the correct approach of the Special Immigration Appeals Commission when reviewing the Secretary of State's decision. So there is not a precise parallel with the present situation, where the detaining authority has the burden of satisfying the primary decision-maker, the tribunal, that certain conditions are met. Nevertheless, Rehman is important for the contrast it draws between matters of fact, which the Secretary of State had to establish to the civil standard of proof (see also per Lord Slynn at pp.184H-185A), and matters of judgment and evaluation, in relation to which the concept of standard of proof was considered to be not particularly helpful.
- Munby J also referred to a number of cases concerning the approach of the Parole Board in determining whether it is safe to release a prisoner. In R v. Lichniak  1 AC 903, at para 16, Lord Bingham doubted "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". In R (Sim) v. Parole Board  EWCA Civ 1845,  QB 1288, at para 42, Keene LJ accepted that "the concept of a burden of proof is inappropriate when one is involved in risk evaluation". That was followed in R (Brooks) v. Parole Board  EWCA Civ 80, where Kennedy LJ stated at para 28 that what the Parole Board must do is to decide in the light of all the relevant material placed before it whether, in the terms of section 28(6)(b) of the Crime (Sentences) Act 1997, it "is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined". Although Munby J considered this to be the most obvious analogy with the present case, we accept Mr Bowen's point that the relevant function of the Parole Board is treated as an administrative decision-making process in which the burden of proof has no part to play, so that it does not help directly with the question whether a standard of proof applies where there is a burden on the detaining authority. Nevertheless, it seems to us that the reasoning in such cases provides support also for the view that a risk evaluation of the kind engaged in by the Parole Board is not susceptible to proof to a defined standard.
- On the other hand, it would seem that in B v. Chief Constable of Avon and Somerset Constabulary Lord Bingham considered that the magistrates' court could apply the civil standard of proof ("with appropriate strictness") in deciding whether the defendant "has acted … in such a way as to give reasonable cause to believe that an order … is necessary to protect the public from serious harm from him" (para 31, quoted above). A similar point may be made in relation to Gough v. Chief Constable of Derbyshire (see paras 90-93, quoted above), where the magistrates' court had to be satisfied inter alia "that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder …". In each case, as para 92 of Gough brings out, the focus is on evidence of past conduct, in relation to which there is no difficulty in applying a standard of proof. But in each case there is also an additional element of judgment and evaluation of risk. Yet no distinction was drawn in either case between that element and the fact-finding element as regards the applicability of the civil standard of proof.
- Against that background we turn to consider the conclusion reached by Munby J at paras 101-102 of his judgment, to the effect that issues under sections 72 and 73 as to the appropriateness and necessity of continuing detention (as well as the alternative question under section 73 as to the appropriateness of the patient remaining liable to be recalled) are not susceptible to a defined standard of proof.
- We agree with the judge that, in relation to those issues, the tribunal "is not … concerned so much with finding facts which are capable of exact demonstration but rather with a process of judgment, evaluation and assessment" (para 102). We also agree that this is very similar in nature to the process of judgment or evaluation referred to in cases such as McCann, Rehman and the Parole Board cases.
- We would accept that the concept of a standard of proof is "not particularly helpful" (per Lord Hoffmann in Rehman, with emphasis added) in relation to such a process. But we would not go so far as to hold that there is no room for its application at all. An opinion on the appropriateness or necessity of continuing detention may in principle be held with different degrees of certainty, and it may be important for the tribunal to know what degree of certainty is called for. Under sections 72 and 73 the tribunal has to be "satisfied" as to the relevant matters. As Lord Lloyd observed in In re H (at p.576D-G), "is satisfied" is an expression with a range of meanings covering the criminal standard of proof ("satisfied so as to be sure"), through the civil standard ("satisfied on a balance of probabilities") to being a synonym for "concludes" or "determines" and therefore having an entirely neutral function. We see no absurdity in a tribunal having some doubt as to the appropriateness or necessity of continuing detention, yet being satisfied on the balance of probabilities that it is appropriate and necessary. Accordingly, as it seems to us, the standard of proof has a potential part to play in the decision-making process even in relation to issues that are the subject of judgment and evaluation. In practice, we would expect the tribunal generally either to form the requisite judgment or not to form it, without needing to have specific regard to any standard of proof. But the standard of proof provides a backdrop to the decision-making process and may have an important role in some cases.
- Analysis of this issue is not helped by the fact that "proof" in the phrase "standard of proof" and "probabilities" in the phrase "balance of probabilities" are words which go naturally with the concept of evidence relating to fact, but are less than perfect with evaluative assessments. That is why the courts have started to speak of the "burden of persuasion". Where a court has to be satisfied "on balance" in evaluative matters, it needs to be satisfied on the balance of the argument, where the argument depends in part on evidence (there is always going to be some factual substratum) and in part on evaluation. Since the evidence cannot be divorced from the argument, and since there is also argument on pure issues of fact, it is perfectly acceptable to refer to the whole process as one in which the court has to be satisfied on the balance of probabilities. In relation to the evaluative part of the process that may involve an element of shorthand, but it gives rise to no conceptual or practical difficulty.
- A related consideration is that one of the issues arising for determination in the present context, namely the question under section 72(1)(b)(i) whether the person is suffering from a mental disorder "of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment", is a mixed question of fact and judgment or evaluation. The nature and degree of the mental disorder is a question of fact and is accepted to be susceptible to proof on the balance of probabilities. There is a certain artificiality in applying a standard of proof to that question but not to the related question whether the nature and degree of the disorder make detention appropriate. For example, a modest parallel can be drawn with the apparent view of the court in B v. Chief Constable of Avon and Somerset Constabulary that a standard of proof should be applied to the entire question whether the defendant "has acted … in such a way as to give reasonable cause to believe that an order … is necessary to protect the public from serious harm from him".
- We bear in mind too that, although the observations about the standard of proof in Reid v. Secretary of State for Scotland and R (H) v. London North and East Region Regional Mental Health Review Tribunal were obiter, in each case the court evidently saw no difficulty in applying the standard of proof to the full range of issues to be decided by the tribunal.
- We also think it likely that the tribunal's task will be made easier if, instead of dividing up the issues into matters that are susceptible to proof to a defined standard and those that are not, it approaches the entire range of issues by reference to the standard of proof on the balance of probabilities, whilst recognising that in practice the standard of proof will have a much more important part to play in the determination of disputed issues of fact than it will generally have in matters of judgment as to appropriateness and necessity.
- For all those reasons, we respectfully differ from the conclusion reached by Munby J on this issue. We would hold that the tribunal should apply the standard of proof on the balance of probabilities to all the issues it has to determine. We would not, however, expect the difference between that approach and the approach favoured by Munby J to have much practical significance, given the limited role that the standard of proof will have in relation to matters of judgment and evaluation. Nor does the difference affect the outcome of the present appeal, since the tribunal appears to have applied the standard of proof on the balance of probabilities to all issues save the factual issues to which it applied a standard akin to the criminal standard.
Issue (3): the default position under sections 72 and 73
- This issue arises out of the passage at paras 117-120 of Munby J's judgment which we have quoted fully at para 24 above. In effect, the judge states in that passage that the tribunal is obliged to discharge a patient under section 72 or section 73 only when the detaining authority fails to satisfy it both as to the section 72(1)(b)(i) criterion and as to the section 72(1)(b)(ii) criterion.
- As all parties before us accept, that is an error. The correct position is that those two criteria are cumulative and the tribunal is obliged to discharge a patient if the detaining authority fails to satisfy it as to either of them: see Reid v. Secretary of State for Scotland at pages 539-540.
- Nothing, however, turns on this slip. The judge's observations about the default position were unnecessary for his decision and do not impact on the reasoning in the main part of the judgment. All that is needed, therefore, is to note the error so as ensure that it does not give rise to any confusion in the future.
- Although our reasoning differs in some respects from that of Munby J, we are in agreement with his conclusion that the only misdirection by the tribunal in the case of AN was favourable to the patient and that AN's judicial review application fell to be dismissed. It follows that this appeal must also be dismissed.