Understanding the Burden of Proof in Criminal and Civil Court Proceedings
In court proceedings, whether they be in a criminal or a civil court, the evidence produced, by the Prosecution in a criminal court, or the Claimant in a civil court, has to be of the quality to satisfy ‘the standard of proof,’ for the case to succeed.
The burden of proof describes the responsibility of the party seeking the remedy i.e. the Prosecution when seeking a conviction in a criminal court or the Claimant pursuing damages or another remedy in a civil court.
In criminal courts, the Prosecution must prove the allegations ‘beyond reasonable doubt’ whilst in civil courts the claim must be established ‘on the balance of probabilities.’
There is a clear difference between the two standards applicable:
- in criminal prosecutions, the standard is extremely high and the court must be absolutely sure that the Prosecution’s allegations are true. If the case is not proven beyond reasonable doubt, the defendant must be acquitted.
- in civil proceedings, the standard requires that the court must be satisfied that the Claimant has proven that a particular event is more likely to have occurred than not. If the balance of probabilities is equal, the claimant will not succeed with the case.
John Veale of KANGS explains the nature of the two differing standards.
Beyond Reasonable Doubt | Criminal Courts
The burden of proving the guilt of the defendant lies on the Prosecution. The fundamental principle is that every defendant is presumed ‘innocent until proven guilty’ and with this in mind:
- the Prosecution has to prove to the Jury that the defendant's guilt is beyond reasonable doubt,
- the Prosecution’s evidence must be so compelling that there is no alternative explanation that is reasonable,
- any reasonable doubt must result in the defendant being acquitted,
- throughout a Trial a Judge may remind a Jury of the required standard and will certainly emphasise it before the Jury retires to make its deliberations,
- in proceedings before a Magistrates’ Court, Magistrates should only convict when satisfied beyond reasonable doubt that the defendant is guilty,
- it has been stated by the Crown Court that the Jury should be 99% sure of the defendant’s guilt, such is the high standard required for a conviction.
Potentially, in extreme cases, exceptions may arise when, for example:
- a defence of insanity is raised and the defence may be required to meet the civil standard i.e. on the balance of probabilities.
The Balance of Probabilities | Civil Courts
In civil courts, which deal with disputes across an enormous range including breach of contract, negligence, breaches of fiduciary duty and civil fraud, the Claimant must prove that the evidence relied on it more probable than not that the defendant is liable for the damages or relief being sought.
If the Claimant satisfies the balance of probabilities, the case will be successful. If the court considers that the evidence suggests that there is an equal possibility that either side is correct the Claimant will lose.
The margin is very slim and, unofficially, it is considered that a Claimant needs to satisfy the ‘51% Test’ i.e. that the probability is 51% or more that the event occurred.
Indeed, establishing pertinent criteria when considering how the balance of probabilities standard is determined has caused much deliberation in the Higher Civil Courts for many years.
The standard is described as a flexible standard to the extent that the court will assume that some things are for more likely to occur than others. The recognised explanation is that of Lord Hoffman which states:
'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.'
In the case of Vald. Nilsen Holdings A/S and others company v Baldorio and others it was held:
- the balance of probabilities is the sole standard in ordinary civil cases,
- there is no inherent link between the seriousness of an allegation and its inherent improbability. Just because an allegation is serious does not automatically mean it is less likely to be true,
- while the seriousness of a claim does not automatically impact its likelihood, the court does use common sense when assessing the inherent probability of events. Accordingly, the Judge will consider whether the Claimant's story aligns with general experience and logic.
- that more serious allegations do not require a higher level. The standard remains the balance of probabilities, regardless of the gravity of the claim.
Civil Fraud
In civil claims involving fraud, the standard of proof remains the same as all other claims before a civil court:
Re B (Children) [2008] UKHL 35)
- The standard of proof in civil fraud claims is the same as in all other civil claims,
- The Claimant has to show that it is more likely than not that the defendant committed a fraud, not that it is beyond reasonable doubt.
Fiona Trust v Privalov [2010] EWHC 3199
Cogent evidence is that which is strong, persuasive and compelling enough to prove a particular point or conclusion. It is clear, convincing and reasonable evidence.
- ‘cogent evidence is required to justify a finding of fraud or other discreditable conduct,
- fraud and dishonesty are very serious allegations requiring clear evidence.
Flexibility of the Civil Standard of Proof
As mentioned above, the civil standard of proof is regarded as being flexible. In seeking to apply appropriate justice, courts have, for all intents and purposes, on occasion ‘blended’ the two standards of proof applicable to criminal and civil courts in order to reach a just solution.
Two High Court decisions applied special standards where the circumstances seemingly fell outside those associated with civil court actions, where it was decided that the standard of proof applicable was more strident to that of the balance of probability:
B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340
The defendant appealed a Sex Offender Order made against him by Justices under section 2 of the Crime and Disorder Act 1998.
In this criminal matter, the Justices had applied the civil standard of proof and one of the Appeal issues raised was whether this was correct. The Court of Appeal determined that for all practical purposes in these circumstances, the civil standard was indistinguishable from the criminal standard.
R (McCann) v Crown Court at Manchester [2003] 1 AC 787
Three Appellants had applied for a Judicial Review to quash Anti-social Behaviour Orders under section 1 Crime and Disorder Act 1998.
The Crown Court held that the proceedings leading to the making of the Orders were civil proceedings, not criminal proceedings, because they were aimed at protecting an identified section of the community not at punishing individuals for criminal conduct.
The Court of Appeal agreed and found that the civil standard of proof was correctly applied which was for all practicable purposes indistinguishable from the criminal law standard.
The consequences of an Anti -social Behaviour Order were serious and the standard of proof needed to be commensurate with the seriousness of the implications of proving the requirements i.e. ‘a heightened civil standard that is virtually indistinguishable from the criminal standard.’
How Can We Assist?
KANGS provides substantial experience gained from assisting and supporting clients involved in court proceedings of every conceivable nature whether in a civil court dealing with commercial and business disputes or a criminal court.
Our team possesses vast knowledge of the court rules and procedures, essential for overseeing the efficient and pro-active management needed to achieve a favourable and cost-effective resolution for any challenge our clients face.
If we can be of assistance, our team would be delighted to hear from you. Your legal matters deserve immediate attention, and we are here to help. Contact us using the details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
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