Given the content of the interview, the Guardian headline should refer to Standard of Proof and not Burden. In a criminal trial. the prosecution bears the burden of proof. The standard of proof in a criminal case is "beyond a reasonable doubt" or, as it is often put in more modern terms, so that the jury is "sure" of guilt. Nothing the Commissioner said in the interview suggests altering the burden of proof but she commented that the reasonable doubt standard (criminal cases) "sharply contrasted to the" balance of probability standard applicable to civil cases. The Commissioner called for consideration of the level of evidence needed to get a case to court. This may - it was not clear - have been a reference to the test required by the Crown Prosecution Service (CPS) Full Code Test which is that that there must be "sufficient evidence to provide a realistic prospect of conviction." (See footnote)
Criminal charges relating to sexual activity with children are generally viewed by the public with particular opprobrium and the consequences for the accused are immensely serious and almost always include lengthy imprisonment. Evidence can often be very difficult to acquire and meticulous Police investigation is needed. Allegations are frequently made late so that forensic evidence may not be available and the accounts of individuals involved can be muddled. None of this ought to be used to argue in favour of weakening the standard of proof required for a criminal conviction.
Care proceedings are another matter. They are civil proceedings aimed at protection of children from "Significant Harm" as defined in the Children Act 1989 s.31. As a prerequisite to being able to make a care order, in a number of the more tragic cases, the judge will have to decided whether some particular individual is responsible for some injury that a child has suffered. That decision may be made on the balance of probability standard having considered ALL the available evidence. Over quite recent times, there has been debate about the civil standard applicable in such cases but Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, re-affirmed in Re S-B (Children) [2009] UKSC 17, confirmed that the standard was the balance of probabilities.
The difficulties faced by judges in care proceedings are highlighted by the recent decision of Peter Jackson J in F v Cumbria County Council [2016] EWHC 14 (Fam). In the course of the hearing, evidence about the interpretation of post-mortem findings was given by six professional witnesses, three of whom had given evidence at an earlier fact-finding hearing in March 2014. That evidence had to be put together with the evidence given at the earlier hearing so that a final conclusion could be reached.
I don't propose to comment any further about this case except to remark that it is a vivid illustration, in an immensely tragic and long running case, of the intricacies of evidence that can be involved.
Where a prosecution takes place it is quite possible that the criminal case may reach a different conclusion to the care proceedings. Peter Jackson J offers this example:
Wigan Borough Council v Fisher [2013] EWHC 3770 (Fam) and Wigan Borough Council v Fisher [2015] EWFC 34, where I found that a father had caused severe injuries to his baby daughter. He was subsequently acquitted by a jury.
There are also cases where a finding in care proceedings does not lead to prosecution - as in
Wigan Council v M (Sexual Abuse: Fact-Finding) [2015] EWFC 6, where Peter Jackson J found that a step-father had sexually abused his two step-children. No criminal charges have been brought.
This conversation with Peter Jackson J at LSE in December 2013 may be of interest to readers. The judge discussed his work and answered questions.
Footnote:
Where the CPS decides not to prosecute, there is now a Review Process and this can be set in motion by a close relative of a person whose death was directly caused by criminal conduct. The Review Process does NOT apply where the qualifying decision was made prior to the 5 June 2013
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