Reports > Death Disguised > CHAPTER NINE - The Decision-Making Process >
Standard of Proof
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In a criminal trial, the members of the jury are directed that, before they can convict the defendant, the prosecution must make them sure of guilt. This is a very high standard of proof. It used to be said that the jury must be satisfied beyond reasonable doubt. That is the same as saying that they must be sure. This high standard of proof is required because the convicted defendant faces punishment by the court, acting on behalf of the state and in the name of society. It has been accepted for hundreds of years that a high standard of proof is appropriate.
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In a civil case, the usual rule is that the claimant must prove the case on the balance of probabilities. In other words, the judge decides what probably happened. Theoretically, the balance of probabilities means that the judge is 51 per cent satisfied in respect of the crucial facts, even though 49 per cent of the evidence might point to the opposite conclusion. In practice, evidence cannot be so finely assessed and judges do not usually have to make such fine calculations. Occasionally, in a civil case, the judge will find the evidence finely balanced but, of course, still has to reach a conclusion. If the weight of the evidence tips in favour of the claimant, he or she will succeed. If it favours the defendant or is evenly balanced, the claimant will fail, as he or she has not discharged the onus of proving the case.
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Where a civil case concerns an allegation of serious misconduct, such as fraud or the deliberate causing of death or serious injury, the burden on the claimant making the allegation is rather higher than the bare balance of probabilities. Where the allegation is grave, the evidence must prove it with an appropriate degree of cogency. The courts have not attempted to specify the standard of proof required, although it is clear that the standard is not as high as the criminal standard. It is usually referred to as the higher civil standard. The degree of proof required is a matter of judgment for the judge. The judge must remind himself or herself that, as the allegation is very serious and the consequences for the defendant of an adverse finding may be very serious indeed, he or she will wish to feel a greater degree of confidence that the allegation has been proved than on the mere balance of probabilities.
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In an inquiry such as this, there is no required standard of proof and no onus of proof. My objective in reaching decisions in the individual cases has been to provide an answer for the people who fear or suspect that Shipman might have killed their friend or relative. I have also sought to lay the foundation for Phase Two of the Inquiry. My decisions do not carry any sanctions. Shipman has been convicted of 15 cases of murder and sentenced appropriately. He will not be tried or punished in respect of any other deaths. Nor will my decisions result in the payment of compensation by Shipman. It is possible that relatives might recover damages from Shipman if they can show that Shipman has killed their loved one, but my decision that he has done so will not automatically result in an award of compensation against him. Accordingly, I have not felt constrained to reach my decisions in the individual cases by reference to any one standard of proof.
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No Evidence of Presence before Death
