HOUSE OF LORDS
 UKHL 33
on appeal from:  NICA 33
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re CD (Original Respondent and Cross-appellant) (Northern Ireland)
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
John Larkin QC
(Instructed by Field Fisher Waterhouse LLP London agents for Cleaver Fulton Rankin)
Gerald Simpson QC
(Instructed by Madden & Finucane)
Paul Maguire QC
(Instructed by Crown Solicitor’s Office)
30 APRIL AND 1 MAY 2008
WEDNESDAY 11 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re CD (Original Respondent and Cross-appellant) (Northern Ireland)
 UKHL 33
LORD BINGHAM OF CORNHILL
- I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell. I am in full agreement with it, and for the reasons that he gives would restore the order of the judge and dismiss CD’s application for judicial review.
LORD SCOTT OF FOSCOTE
- I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell. I am in full agreement with it, and for the reasons he gives I would allow the Commissioners’ appeal and dismiss the respondent’s application for judicial review.
- The appellants in this appeal are the Life Sentence Review Commissioners (“the Commissioners”), who have a number of functions under the Life Sentences (Northern Ireland) Order 2001 (“the 2001 Order”) in relation to prisoners in Northern Ireland sentenced to imprisonment for life. Their major task is to decide whether and when to direct the release of such prisoners. On 3 August 2005 they decided not to direct the release of the respondent C D, who brought an application for judicial review of that decision. On 23 May 2006 Girvan J dismissed the application, but on 6 September 2007 the Court of Appeal (Kerr LCJ and Campbell and Higgins LJJ) allowed C D’s appeal and quashed the Commissioners’ decision.
- The respondent was convicted on 16 September 1982 of murder and sentenced to imprisonment for life. He was released on 26 April 1996 on licence under section 23(1) of the Prison Act (Northern Ireland) 1953, the enactment then applicable. On 5 March 1997 he was arrested in consequence of an allegation by his niece G, then aged 13 years, of buggery, indecent assault and gross indecency. On 7 March 1997 his licence was revoked by the Secretary of State for Northern Ireland, acting under the powers conferred by section 23(2) of the 1953 Act.
- Further allegations were made by G’s younger sister L and charges were brought against the respondent in respect of the complaint made by G. These charges were withdrawn by the Director of Public Prosecutions on 13 January 1998 and a direction was given by him that there should be no prosecution in respect of L’s complaint, apparently on the ground that it was not in the best welfare interests of the girls to require them to give evidence. The respondent remained in prison and between November 1998 and October 2000 his suitability for release received periodic consideration by the Life Sentence Review Board, a non-statutory body which advised the Secretary of State on the exercise of his power to release life sentenced prisoners on licence. The Board declined to recommend his release, on the ground that they considered that he had committed the offences of which his nieces had complained and there was a continuing risk that he might commit further similar offences if released. An application for judicial review of their decisions was brought by the respondent, but on 29 June 2001 the application was dismissed in a written judgment given by Nicholson LJ sitting in the Queen’s Bench Division.
- The 2001 Order came into force on 8 October 2001 and the respondent’s case was referred to the Commissioners on 29 November 2001 under the provisions of article 11(5) and 9(4). It is convenient at this point to outline the material provisions of the Order. Part II provides for the appointment of the Life Sentence Review Commissioners, who are to advise the Secretary of State with respect to any matter referred to them by him which is connected with the release or recall of life prisoners and have the functions conferred by Part III. The “tariff”, or that part of the life sentence considered appropriate to satisfy the requirements of retribution and deterrence, is under article 5 fixed by the sentencing court. Under article 6, as soon as a life prisoner has completed the tariff part of his sentence, the Secretary of State has to refer his case to the Commissioners, who must consider whether it is necessary for the protection of the public from serious harm that he should be confined. If they are satisfied that it is not so necessary, they are to direct his release, whereupon it is the duty of the Secretary of State to release him on licence. Articles 8 and 9 make provision for the duration of a life prisoner’s licence on release and for his recall to prison if so recommended by the Commissioners. Article 11 (5) applies to a life prisoner such as the appellant, who has been recalled to prison under section 23 of the Prison Act (Northern Ireland) 1953 but is not an existing licensee within the meaning of article 12. The case of such a prisoner is to be referred by the Secretary of State under article 9(4) to the Commissioners, who are to consider whether he should be released and direct accordingly.
- The respondent’s case was so referred to the Commissioners on 29 November 2001 and there then commenced a long drawn-out process, the length of which was the subject of criticism by counsel for the respondent. I shall deal later with the causes of this delay in reaching a conclusion and it is sufficient to state at this stage that the hearing into the question of the respondent’s release was not completed until 15 June 2005, following which a considered decision in writing was given by the Commissioners on 3 August 2005.
- In paragraph 3 of their decision the panel of Commissioners who decided the matter set out their approach to the task before them:
“In our opinion, when Article 9 is read with Article 3(4), the Secretary of State must first prove on the balance of probabilities facts which, on the assumption that Mr [D] was released on the basis that there was no more than minimal risk of him committing serious harm, indicate that at the date of recall there was a significant risk of him committing serious harm. If, but only if, such facts are proved we must then go onto consider whether the risk posed at this point in time by Mr [D] is capable of being safely managed in the community and, if not, whether there are steps that might be taken with a view to reducing the current risk to a level that could, in the future, be safely managed in the community.”
- The panel then went on to consider the allegations made by the complainants G and L against the respondent. Both had been interviewed by social workers and the interviews had been recorded on video, which the panel viewed. The panel received evidence from a range of witnesses, police officers, social workers, a forensic scientist, psychologists, a Probation Service Resettlement Manager and a prison governor. The respondent gave evidence on his own behalf and called witnesses in support of his case. Neither G nor L was called to give oral evidence. The Secretary of State felt that it was not appropriate to seek to have G attend on subpoena, in the light of her expressed unwillingness to give evidence. The panel explored the possibility of her attending voluntarily or of their directing the Secretary of State to subpoena her. Eventually it concluded that for the reasons set out in paragraph 13 of the decision it would be unreasonable to force her to give evidence even by way of a video link.
- The respondent’s counsel argued in his closing submissions that the failure to summon G had unfairly deprived the respondent of having her evidence challenged directly in cross-examination. The panel indicated that even at that late stage it would favourably consider an application for adjournment to enable his solicitor to subpoena G, and that it would give leave for her to be questioned by counsel as if she had been called as a witness on behalf of the Secretary of State. No such application was made to the panel. They commented on this in paragraph 15 of their decision:
“The panel has concluded that Mr Hutton’s approach to the issue of [G] being subpoenaed was a perfectly legitimate tactical manoeuvre by which he sought, on the one hand, to characterise the failure to subpoena [G] as unfair while, on the other hand, he sought to avoid being instrumental in securing her attendance at the hearing and giving evidence with the consequent danger of the case against Mr [D] being strengthened. The panel remains of the opinion, for the reasons given, that it would have been unreasonable to have directed that [G] be subpoenaed.”
- The panel went on to hold that they were entitled to admit the video recordings and transcripts of the interviews of G and L, as they were not bound by the strict rules of evidence. They gave detailed consideration to the weight to be attached to their evidence, in the light particularly of any discrepancies appearing or the possibility of contamination as the result of discussion between the girls. The panel held that it was “clear beyond peradventure” that L had been sexually assaulted and regarded it as established also that G had been. They then considered seriatim three possible perpetrators of the abuse, who might have had the opportunity to assault the girls. They concluded on the evidence that none of them was the abuser.
- They turned to consideration of the evidence against the respondent, discussing the explanation which he gave in his defence for the presence of semen on the floor of two rooms in the house where the children lived. The respondent claimed in his evidence that this was explained by his solitary masturbation in those rooms. The panel expressed the view that the respondent’s denials of abusing the girls were given in a most unconvincing manner. They considered that both his demeanour and the manner in which he gave his evidence suggested to them “inability to acknowledge guilt, rather than innocence.”
- The conclusions reached by the panel on the evidence were set out in paras 49 and 50 of the decision:
“49. We are satisfied on the balance of probabilities that Mr [D] sexually abused both [L] and [G] and that this abuse included the repeated and forcible anal penetration of both girls. Furthermore, it is our opinion that, as at the date of his recall, that conduct was indicative of a significant risk of him committing serious harm — for example, of the sort perpetrated on [L] and [G] — if he remained at large.
50. Mr Hutton submitted that because the conduct alleged against Mr [D] involved the commission of criminal offences we could only reach the conclusion we have reached if the case against Mr [D] was ‘compelling’. For our part we are uncertain as to what this adds to the requirement that we must be satisfied (as we are) on the balance of probabilities that Mr [D] committed the acts alleged against him. We understand the point made in Re H and Others  AC 563 at 586 to the effect that the more serious the allegation the less likely it is that it occurred. But this had no bearing on the instant case. Here it is clear beyond peradventure that both girls were the victims of buggery. There is nothing inherently unlikely in a member of their family having been the perpetrator. Indeed, Ms Deirdre Mahon gave evidence to the effect that most children who are abused are abused by male relatives. We do not pretend that this was an easy case to decide, but for that very reason we gave every aspect of it most careful scrutiny and we are clear in our minds that Mr [D] committed the grave sexual assaults on [L] and [G] to which we have referred.”
- The panel then considered the element of risk of the respondent committing further serious harm which would be involved in his release and decided that he should not be released at that stage. They expressed views on steps which might be taken towards a pre-release regimen and a community resettlement plan for the respondent, which have now been put into effect. They recommended the reference of his case back to the Commissioners in two years’ time, or earlier if his progress warranted it.
- The respondent brought an application for judicial review of this decision, which was dismissed by Girvan J on 23 May 2006. The respondent’s case was presented on three main grounds:
(a) The procedure adopted by the panel was unfair in that they did not require the attendance of G and L to give oral evidence which could be tested by cross-examination.
(b) The panel were in error in failing to apply a higher standard of proof of the facts than the balance of probabilities.
(c) There was a lack of sufficient causal connection between the deprivation of liberty of the respondent in consequence of his recall and his original conviction for murder, hence there was a breach of article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
(d) The delay in reaching a decision on the release of the respondent caused a breach of article 5(4) of the Convention.
- The judge declined to accept any of these arguments. He held that the procedure adopted was not unfair and that there was sufficient causal connection between the murder committed by the respondent and his subsequent recall. He regarded the delay as being attributable very largely to the respondent’s side, and in any event since the detention had not been shown to be unlawful he had not suffered any loss of liberty. On the issue of standard of proof he held that the respondent had failed to persuade him that the panel had approached its decision-making in the wrong way or misconceived the issue as to the cogency of the evidence required. They were “clear” in their mind that the respondent had committed the “grave sexual assaults” and clearly considered the evidence of sufficient cogency to persuade them of such grave charges.
- The Court of Appeal rejected all the grounds save one on which the respondent based his appeal. It agreed with Girvan J on the question of delay. It held that the procedure adopted by the panel “worked no unfairness” to the respondent. The court held, however, that the panel had applied the wrong standard of proof and that its decision accordingly must be quashed. It recognised that there is a single civil standard of proof, the venerable debate as to whether there was a third or intermediate standard between the civil and criminal standards having been put to rest by the decision in In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563. The court cited a passage from the opinion of Lord Nicholls of Birkenhead in that decision, to which I shall return, and stated in paragraph 37:
“Mr Larkin claimed that the panel had in fact applied the principle articulated in this passage but we cannot agree with that submission in light of what was said in paragraph 50 of the decision. It is true that the panel acknowledged the existence of the principle but it proceeded then to explain why it considered that it should not be applied. It said that the ‘point made in Re H that the more serious the allegation the less likely it is that it occurred … had no bearing on the instant case’ because there was medical evidence that the girls had been sexually abused and that there was nothing inherently unlikely in a member of the family being the perpetrator bearing in mind that sexual abuse of children is most frequently carried out by male relatives. This betrays an incorrect approach, in our opinion. The improbability of the appellant having committed the offences is not eliminated simply because it can be shown that the complainants had been the victims of sexual abuse. As Girvan J pointed out, deliberate abuse by a family member is abnormal. It appears to us, therefore, that the panel should have recognised that the offences alleged against the appellant called for a flexible approach to the civil standard of proof requiring more cogent evidence than would be conventionally required.”
- The court went on to say that the need to look for compelling evidence to discharge the burden of proof is not confined to the situation where it can be said that the commission of offences is inherently unlikely. After considering a passage from the judgment of Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region)  EWCA Civ 1605,  QB 468, 498, para 64, it stated its conclusion in para 40:
“If the panel considered that no higher quality of evidence than normal was required, the fact that the evidence was scrupulously examined and that the panel was clear in its conclusion cannot convert the proof against the appellant to a condition to which the panel believed it did not need to aspire. It is clear that the panel did not consider that a more compelling quality of evidence was required. For the reasons that we have given, we consider that this was necessary.”
- The Court of Appeal heard a further application on behalf of the respondent on 4 December 2007, in which counsel sought to advance a claim for compensation on the basis that his continued detention following the quashing of the Commissioners’ decision was in breach of article 5(1) of the Convention. In view of the conclusion which I have reached on the appeal before the House, this issue will not arise and I do not propose to deal with it further.
- The Commissioners’ appeal to the House was based on a challenge to the decision of the Court of Appeal on the issue of the standard of proof. The respondent cross-appealed on several grounds, that the procedure adopted had been unfair, that he had been unlawfully detained in breach of article 5(1) of the Convention and that the delay had caused a breach of article 5(4).
- As I have said, I do not propose to give any further consideration to article 5(1). I agree with the courts below that there was a sufficient causal connection between the deprivation of the respondent’s liberty and his original conviction. On the complaint of unfairness of procedure, I am in agreement with Girvan J and the Court of Appeal. As the panel pointed out in paragraph 15 of its decision, counsel appearing for the respondent sought to obtain a tactical advantage by complaining of unfairness caused by the absence of G’s evidence while attempting to avoid having to call her, which would have carried the risk that the case against the respondent would be strengthened. The course adopted by the panel removed any validity which this complaint might have possessed. The panel did not require the respondent to call G as his own witness, which could have been a significant handicap. It offered him the facility to subpoena her to attend the hearing and then cross-examine her. This could not be described as disadvantageous to him, unless it were to be suggested that it might predispose G against the respondent if she felt aggrieved by the fact that it was he who caused her to be brought to give evidence. I do not consider that there is any real substance in this suggestion. G had made a complaint of serious sexual abuse against the respondent, which gave rise to a real grievance, and it can hardly have added significantly to her resentment if she had been required to give evidence against him. I accordingly do not consider that the procedure adopted was unfair to the respondent. Certainly it is a long way from restricting his access to the deciding tribunal in such a way or to such an extent that the very essence of the right is impaired: cf R (Roberts) v Parole Board  UKHL 45,  2 AC 738, 753-4, para 17, per Lord Bingham of Cornhill, citing Tinnelly & Sons Ltd v UK (1998) 94 BHRC 393, 415, para 72.
- I turn then to the main subject of the appeal before the House, the standard of proof applicable in a case such as the present. The Court of Appeal said in terms in the passages which I have quoted from its judgment that the “flexible approach to the civil standard of proof” required “more cogent evidence than would be conventionally required” and that “a more compelling quality of evidence” was needed. It was submitted by Mr Larkin QC on behalf of the appellants that this was a misunderstanding of the principles, which have now been settled if they were at any time in doubt, applying to the standard of proof.
- Much judicial time has been spent in the last 50 or 60 years in attempts to explain what is required by way of proof of facts for a court or tribunal to reach the proper conclusion. It is indisputable that only two standards are recognised by the common law, proof on the balance of probabilities and proof beyond reasonable doubt. The latter standard is that required by the criminal law and in such areas of dispute as contempt of court or disciplinary proceedings brought against members of a profession. The former is the general standard applicable to all other civil proceedings and means simply, as Lord Nicholls of Birkenhead said in In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563, 586, that
“a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.”
- Any confusion which has crept into the application of this principle appears to have stemmed from statements made in a number of earlier cases, which may have been misunderstood but certainly have not always been applied correctly. The earliest example appears to be Bater v Bater  P 35, 37, in which Denning LJ referred to the necessity in the proof of fraud or some allegations requiring proof in a divorce case for “a higher degree of probability”, not as high as in a criminal court but a degree of probability which is commensurate with the occasion. It is apparent from what Morris LJ said in Hornal v Neuberger Products Ltd  1 QB 247, when quoting this statement, that he did not regard it as laying down a more exacting standard than the balance of probabilities. He said at page 266:
“Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities.”
- The phrase “degree of probability” was picked up and repeated in a number of subsequent cases – see, for example, In re Dellow’s Will Trusts  1 WLR 451, 455, Blyth v Blyth  AC 643, 669 and R v Secretary of State for the Home Department, Ex p Khawaja  AC 74, 113-4 – and may have caused some courts to conclude that a different standard of proof from the balance of probabilities or a higher standard of evidence was required in some cases. In so far as such misunderstanding has occurred, it should have been put to rest by the frequently-cited remarks of Lord Nicholls of Birkenhead in In re H (Minors). Immediately after the passage which I have quoted from his opinion, he went on at pages 586-7:
“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established … No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a standard higher than the preponderance of probability.”
- If any further clarification were required, it was provided by Lord Hoffmann in Secretary of State for the Home Department v Rehman  UKHL 47,  1 AC 153, where the Special Immigration Appeals Commission had held that the Secretary of State had not established to a high degree of probability that the applicant, who was the subject of a deportation order, was likely to be a threat to national security. The House of Lords held that where past acts were relied on they should be proved to the civil standard of proof. Lord Hoffmann said at paragraph 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.”
Lord Hoffmann recently returned to the topic in In re B (Children)  UKHL 35, where, with support from baroness Hale of Richmond, he reaffirmed in emphatic terms the views which he expressed in Rehman.
- Richards LJ expressed the proposition neatly in R (N) v Mental Health Review Tribunal (Northern Region)  EWCA Civ 1605,  QB 468, 497-8, para 62, where he said:
“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.”
In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below.
- It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann’s example of the animal seen in Regent’s Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.
- It follows that I am unable to agree with the formulation by the Court of Appeal of the standard required or with its conclusion that the panel of Commissioners failed to adopt and apply the correct test. The panel said that the point made in In re H (Minors) had no bearing on the case before it, because it was “clear beyond peradventure” that the girls were the victims of buggery. That statement could not be criticised, but there remained the question whether the respondent was the person who had committed the buggery. The panel had to be satisfied on the balance of probabilities that he was, but it did not follow that specially cogent evidence was required. It was not inherently unlikely that a member of the girls’ family was the perpetrator, but, before being satisfied that it was the respondent, the panel had to devote the necessary critical attention to the evidence adduced in support of such a serious charge. It is quite apparent that they did devote very careful and anxious attention to the question. They examined the possibility that it could have been one of three other persons, which they rejected. They considered the case put forward by the respondent and the quality of his evidence and expressed themselves satisfied after “most careful scrutiny” that he was the perpetrator, saying that they were clear in their minds that he had committed the grave sexual assaults. In my opinion they went about their task in the proper manner and the criticism made of their approach was not justified. The evidence against the respondent was clear and cogent and pointed very strongly to the conclusion reached by the panel.
- The final question is the claim by the respondent that his rights under article 5(4) of the Convention to a speedy decision of the lawfulness of his detention were breached by virtue of the long lapse of time between his recall to prison in March 1997 and the Commissioners’ decision in August 2005. Since his detention over this period was in my opinion lawful, he cannot claim that he should have been at liberty and no question of possible compensation arises. Mr Simpson QC on behalf of the respondent claimed, however, that there had been a breach and that the respondent was entitled at least to a declaration to that effect.
- One cannot avoid a feeling of some disquiet when one looks at the extraordinarily long period which elapsed between recall and final decision. One may find, as I shall show, that there is no single gap in the chronology which points to avoidable delay on the part of the Commissioners. Nevertheless, where there are unavoidable delays which add up to a substantial lapse of time, it is incumbent on any court or tribunal to take proactive steps to press on with the matter before it and attempt to overcome any difficulties which may have been holding back its resolution.
- It is necessary to bear in mind, first, that the remedy is being sought by the respondent against the Commissioners, not against the Secretary of State, and that what has to be considered is whether the Commissioners failed to act with proper expedition, not whether the system required overhaul so as to speed up the process in some way. For this reason one must leave out of consideration the period up to November 2001 – over half of the overall lapse of time – when the matter was referred to the Commissioners for consideration. One may observe, however, that a good deal of activity took place between March 1997 and November 2001, involving two determinations by the Life Sentence Review Board and an application for judicial review.
- The Commissioners provided the House with a full chronology of events between November 2001 and August 2005 and I need only summarise the salient points. I would regard as reasonable the steps taken between November 2001 and June 2002 by the panel to which the case was then assigned to prepare it for hearing. In June 2002 the respondent dismissed his legal representative and the Commissioners were not notified of any fresh representation until October 2002. The panel pressed the new solicitors to get ready for the hearing, but they informed the panel in January 2003 that they could not proceed until they had secured legal aid. The chairman of the panel himself made efforts to obtain a decision from the Legal Services Commission on the grant of legal aid, writing to them and meeting the Head of Operations. Legal aid was eventually obtained in June 2003, and the panel then began to press the respondent’s solicitors to have the case ready for hearing, but received several requests for extension of time. A hearing date was fixed for 9 January 2004, but on that date the respondent’s solicitors objected to the panel chairman, on the ground that he had been party to an earlier determination of the facts, which they wished to revisit. The panel recused themselves and a new panel was appointed..
- A preliminary hearing was held on 16 March 2004 and a timetable was drawn up. A hearing date in May 2004 was fixed, but this was vacated because of discussions about G’s attendance to give evidence and efforts to persuade her to attend voluntarily. By November 2004 it was definite that she would not attend and the panel chairman indicated that the Commissioners would not subpoena her. Attempts were made to fix a hearing date, but agreement on a date could not be reached. Eventually the hearing commenced on 22 March 2005. It continued on 23 March, then the panel reconvened to continue with the hearing on 23 and 24 May, 31 May, 1 June and 15 June. The hearing concluded on 15 June and the written decision of the panel was issued on 15 August 2005.
- I am of the view, on consideration of the foregoing summary, that the Commissioners took reasonable steps to proceed to a hearing, and that the delays were mostly outside their control. Some of them were attributable to the respondent’s change of legal representation and to requests from his solicitors to extend time over various steps. Some delays were unavoidable, bearing in mind that the panel consisted of part-time members and dates had to be found when they could all attend and the witnesses were available. I conclude accordingly that the Commissioners did not delay unduly at any stage, notwithstanding the very long time that the proceedings took to reach a determination. I therefore would not favour making any declaration of breach of article 5(4) of the Convention.
- For the reasons which I have given I would allow the Commissioners’ appeal and dismiss the respondent’s application for judicial review.
LORD BROWN OF EATON-UNDER-HEYWOOD
- I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell and agree with it.
- With regard to the cross-appeal there is very little that I want to add to what Lord Carswell says. As he points out, the article 5(4) complaint of delay is advanced here not against the Secretary of State but against the Commissioners who themselves only became seised of the case in November 2001 and who necessarily had to operate within the resource constraints imposed upon them. The very fact, to which again Lord Carswell refers, that the Chairman of the Panel personally took steps to hasten the grant of legal aid to the respondent illustrates the Commissioners’ own anxiety and readiness to progress matters so far as they could.
- Concerned although inevitably one is to note the passage of some eight and a half years before a substantive decision was finally reached at an oral hearing in August 2005 upon allegations of buggery which as long ago as March 1997 had prompted the respondent’s recall to prison—not least in the context of a statutory regime allowing the prisoner to call for reviews of his continuing detention at two-yearly intervals—any blame there may be for delay cannot properly be laid at the Commissioners’ door. Clearly, however, the Secretary of State should take this opportunity to remind himself of the need to ensure that the system as a whole functions efficiently and is effective to overcome whatever obstacles may lie in the path of speedy determinations. Having myself been party to the decision of the ECtHR in Blake v United Kingdom (2007) 44 EHRR 29, I cannot entirely put it from my mind. True it is that the overall time it took to reach a final decision there was just over nine years. But the dispute there was a civil one and the case fell for consideration under article 6 (which calls for a hearing “within a reasonable time”) rather than, as here, under article 5(4) which expressly requires decisions to be made “speedily”. The word “speedily” carries its own emphasis. These, however, are exhortatory words directed at the future. They cannot avail the respondent on his cross-appeal.
- The one aspect of Lord Carswell’s opinion upon which I want to elaborate a little is with regard to the appeal itself. Like him, I have no doubt whatever that the Commissioners dealt entirely correctly with the evidence about the allegations of buggery and the standard of proof required and that the Court of Appeal was wrong to have criticised them. I want to indicate certain concerns I have about the much discussed —some would say greatly over-analysed—question as to how tribunals should approach cases involving the civil standard of proof. I am troubled by one or two of the recent authorities: there really seems to me an issue of principle at stake here.
40. What to my mind is unquestionably the most useful and accurate statement of the position is that made by Lord Hoffmann in Secretary of State for the Home Department v Rehman  1 AC 153, para 55. It bears repetition as few such statements do:
a. “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.”
- Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof), explaining (as Lord Hoffmann noted) that some things are inherently more likely than others, had used the following illustrations (at p 586):
a. “Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her.”
- Obviously, everything going to the likelihood or otherwise of an allegation being true—of an offence having been committed or other reprehensible conduct—is relevant to the Court’s consideration as to whether, having regard to all the evidence, it has been established as more likely than not. Generally speaking, as Lord Nicholls was pointing out, people tend not to commit serious offences—not least because of the consequences likely to follow if they do—and ordinarily people are more likely to have been negligent than fraudulent, more likely to have hurt someone unintentionally than deliberately, more likely to have provoked a stepdaughter into complaint by having lost their temper and slapped her than by having raped her. Similarly, as Lord Hoffmann pointed out in Rehman, one is more likely to see an Alsatian than a lioness in Regent’s Park (the proximity of the zoo notwithstanding). Similarly too, someone with a good character is less likely to behave badly than someone with a bad character. Someone who values their “reputation” will be less likely to imperil it than someone known to be disreputable. These are simple illustrations of an obvious point and no purpose would be served by multiplying them.
43. It is surely equally obvious that the more inherently unlikely it is that something has happened, that an allegation is true, the more persuasive (cogent is the word often used) the tribunal will need to find the evidence pointing that way before concluding it to be more likely than not. On all this I share the views expressed by Lord Carswell.
- My difficulty comes at the point when certain of the authorities speak of requiring stronger than usual evidence to prove the case on the balance of probabilities, not to overcome any inherent improbabilities in the case, but rather because to find it established would have serious consequences for the person against whom the allegation is made. Lord Carswell at para 26 cites paragraph 62 of Richards LJ’s judgment in R (N) v Mental Health Review Tribunal (Northern Region)  QB 468, 497-8, which contains a hint of the problem. It is at paragraph 64 of N, however, that the problem is laid bare:
a. “It is true that the rationalisation put forward in In re H and followed in Secretary of State for the Home Department v Rehman  1 AC 153 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 Secretary of State for the Home Department v 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.”
- For my part I would have rejected, not accepted, counsel’s submission.
- If the evidence satisfies a tribunal charged with deciding questions on the balance of probabilities that an allegation made against A is more likely than not to be true—notwithstanding whatever unlikelihood there may be in A having acted as alleged given the serious adverse consequences to him likely to result from so acting—then in my judgment it would be quite wrong for that tribunal to decide the question in A’s favour merely to save him from the serious consequences of a finding against him—for example, to save a bank manager from a finding of dishonesty.
- I do not for a moment suggest that the serious adverse consequences of a decision are for all purposes (other, of course, than insofar as they point to the probabilities) irrelevant. Their relevance, however, goes to the standard of proof to be applied in the first place. It is because of the serious consequences of criminal convictions or adverse disciplinary findings that the criminal standard of proof—proof beyond reasonable doubt—is required in those cases.
- I recognise that there are passages in some of the older authorities which are not easily reconcilable with this approach. And perhaps that could be said too of a series of more recent, quasi-criminal, cases: B v Chief Constable of the Avon and Somerset Constabulary  1 WLR 340, a Divisional Court decision concerning the making of sex offender orders; Gough v Chief Constable of the Derbyshire Constabulary  QB 1213, a decision of the Court of Appeal regarding the making of football banning orders; and R (on the application of McCann) v Crown Court at Manchester  1 AC 787, a decision of your Lordships’ House on the making of anti-social behaviour orders. As Richards LJ pointed out in N (at paras 57-58) I referred to all these when giving the Board’s judgment in Campbell v Hamlet  3 All ER 1116, suggesting that they demonstrated some flexibility in the civil standard of proof. Given, however, the conclusion in those cases that the standard of proof there being set was “for all practical purposes . . . indistinguishable from the criminal standard” (my noble and learned friend Lord Bingham of Cornhill as Lord Chief Justice at para 41 in B), “An exacting standard of proof . . . in practice . . . hard to distinguish from the criminal standard” (Lord Phillips of Worth Matravers MR at para 90 in Gough), “virtually indistinguishable” from the criminal standard so that “pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases . . . apply the criminal standard” (Lord Steyn at para 37 in McCann—views precisely echoed by Lord Hope of Craighead in the same case), I question whether it would not have been more logical and appropriate to have decided that the making of the various orders calls for the criminal standard of proof to be satisfied in the first place. Certainly, once it became established, as finally it was in In re H, that there is no such thing as an intermediate standard of proof, logic surely demanded that one standard or the other be applied and common sense dictates the rest.
49. None of this, of course, affects the outcome of the present appeal. The standard of proof to be applied here was, by common consent, the civil standard. And that surely is right. Of course the consequences for the respondent if the allegations of buggery were made out were serious indeed, long further years of incarceration in prison. But the consequences for the public of his being in fact guilty of buggery yet nevertheless released were serious too: he would present an unacceptable risk. As a mandatory life sentence prisoner the respondent could not complain that the burden of establishing that he could safely be re-released rested on him.
- For my part I can find no fault whatever with the panel’s approach to the evidence, whether in paragraph 50 of their decision (cited by Lord Carswell at para 13) or elsewhere. The reference in paragraph 50 to In re H  AC 563, 587 is a plain allusion to Lord Nicholls’ example:
a. “A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under-age stepdaughter than on some occasion to have lost his temper and slapped her”.
- As the panel pointed out, however, once there was clear evidence of buggery, the probabilities shifted: the alternative scenario of the stepfather (here the uncle) merely losing his temper and slapping the girl(s) was no longer a viable alternative and on the evidence before the panel—quite apart from the general evidence about most abuse being by male relatives—the likelihood pointed ever more convincingly towards the respondent. That is all that paragraph 50 was saying.
- In the result, and in common with all your Lordships, I too would allow the Commissioners’ appeal and dismiss the respondent’s cross-appeal.
LORD NEUBERGER OF ABBOTSBURY
- I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Carswell and Lord Brown of Eaton-under-Heywood. I am in full agreement with them, and for the reasons they give I, too, would allow the Commissioners’ appeal and dismiss the respondent’s application for judicial review.