Accuser and accused: the law out of balance?

The law on applying the civil standard of proof to allegations of serious wrongdoing is confused, confusing, and liable to tip the scales unfairly against victims of abuse. The recently concluded House of Lords proceedings against Lord Lester of Herne Hill QC provide an eloquent illustration.

In re D [2008] 1 WLR 1499

The Commissioner relied (para 154 of her report) on the opinion of Lord Carswell in In re D [2008] 1 WLR 1499 (HL). This case concerned the Parole Board’s assessment of allegations that a prisoner had subjected children in his family to sexual abuse. Lord Carswell, with whom the other Lords agreed, stated at para 28: “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 [civil] 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…, 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… 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”.

Note that the seriousness of the allegation is listed separately from the seriousness of the consequences, and from the inherent unlikelihood of the event – the implication being that the gravity of the allegation is an independent ground requiring heightened scrutiny quite separate from the actual effect such gravity has on the chances of it being true. This is illustrated when Lord Carswell explained why the challenge to the Parole Board’s approach failed. Although it was not “inherently unlikely” that the sexual interference the children had suffered was perpetrated by a family member, “before being satisfied that it was the [prisoner], the panel had to devote the necessary critical attention to the evidence adduced in support of such a serious charge” (para 29).

Lord Brown’s view appears to differ. The only relevance of the seriousness of the charge was the seriousness of the consequences, which in turn was only relevant to its effect on the likelihood of the alleged wrongdoer risking such consequences:

“47. 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 con-sequences 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. 

“48. I do not for a moment suggest that the serious adverse consequences of a decision are for all purposes (other, of course, than in so far 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.”

In my view, Lord Brown’s approach is correct. The problem with Lord Carswell’s approach is that it puts the fulcrum equidistant between the scales of justice, but then places a thumb on one side of those scales. Whether one applies an elevated standard of proof, or requires evidence on one side to have special cogency, or subjects that evidence to heightened scrutiny, the ultimate effect is the same. 

To speak of requiring heightened scrutiny rather than an elevated standard of proof is like rearranging an algebraic equation, except that one is left with a formula that is more complicated than the one started out with.

The Commissioner’s approach

The Commissioner for Standards explained her approach to the civil standard of proof as follows (para 155):

“In my view, this case is one which requires strong evidence to support a finding that the allegations against Lord Lester are more likely than not to be true. I consider that the allegations relating to Lord Lester’s alleged sexual remarks and persistent unwanted touching to be at the less serious end of the scale, while still amounting to a breach of personal honour, if true. However, the allegation that he offered a corrupt inducement [a seat in the House of Lords] to the complainant to become his mistress is a very serious matter, as is the allegation that he blocked her from attending meetings and threatened her with unspecified consequences if she did not accede to his demands, as, in each case, the alleged behaviour attacks the integrity of the House of Lords.”

I do not think Lord Brown would have approached the case in this way. If a man is willing to repeatedly touch and grab a woman despite her protests, a sense of moral compunction is unlikely to assert itself when he is tempted to offer a peerage in order to overcome her objections. One does not seem inherently more likely than the other.

Thus the Commissioner’s approach seems much closer to that of Lord Carswell, without matching it exactly in expression. Lord Carswell would surely have objected to requiring “strong evidence”, just as he rejected a “specially cogent standard of evidence”. Instead, he would have said that Ms Sanghera’s account ought to be subjected to “heightened scrutiny”, or “critical attention”. Note the invidious and subjective ranking of wrongdoing occasioned by this approach. Why is a physical trespass less serious than political corruption? Why is the integrity of the House of Lords ranked higher than a woman’s physical integrity? Why should a woman’s word be examined with higher scrutiny if she should allege a corrupt sexual advance, than if she should allege a sexual assault?

In fairness, the Commissioner not only considered the inherent probabilities of the conduct complained of but also the improbability of the complainer having fabricated her account (para 18). But there was no explicit consideration of the implications of rejecting Ms Sanghera’s account. One could only reject it on the basis that Ms Sanghera had lied – there was no room for an honest misunderstanding. To falsely accuse a member of the House of Lords of sexual harassment, in circumstances that might lead to his suspension, would itself be a grave wrong. If one should hesitate from concluding that a complaint of wrongdoing is true, one logically must also hesitate before concluding that an alleged victim has borne false witness. To focus only on the implications on the honour of the alleged wrongdoer, and not of the alleged victim, would be to skew in favour of the alleged wrongdoer what ought to be an evenhanded approach.

Judicial criticisms 

Despite requiring “strong evidence”, and her explicit reliance on Lord Carswell’s opinion in In re D, the Commissioner was criticised by the former Master of the Rolls, Lord Woolf, and the former President of the Family Division, Lady Butler-Sloss. Lord Woolf said: “If [judges] want to deal with balance of probabilities, they recognise that the balance can fluctuate according to the seriousness and gravity of the issue at stake.” This is another example, along with the Commissioner, of an experienced lawyer tripping over the precise phrasing, though the substantive effect is much the same. Lady Butler-Sloss adhered more closely to the current orthodoxy, paraphrasing Lord Nicholls of Birkenhead from In re H (Minors) [1996] AC 563 by stating: “the more serious the allegation, the more cogent the evidence has to be. That is not saying that there is a sliding scale for the standard of proof”. (Note again, though, that Lord Carswell would not have referred to “cogent evidence”, and the actual phrase used by Lord Nicholls was the need for the evidence to be “more convincing” (para 26).) But she then criticised the Commissioner for applying “a later decision to that of… Lord Nicholls”, a criticism it is difficult to make sense of, given that neither Lord Carswell’s approach nor the Commissioner’s self-direction could be said to be less favourable to Lord Lester.

Epilogue and conclusion

The House of Lords initially declined to agree to the select committee’s report, but the committee issued a further report adhering to its position and rejecting the criticisms made of the Commissioner, including her application of the civil standard of proof (paras 43-45). The House of Lords agreed to that further report, albeit by then Lord Lester had retired from the House. So Ms Sanghera was ultimately vindicated.

Nonetheless, this case illustrates the difficulties around testing allegations of serious wrongdoing according to the civil standard of proof. The current law requires the application of contorted and confusing language (the consistent and uncontroversial exposition of which appears sometimes to be beyond even those of great legal experience), in order to maintain a facade of an evenly balanced standard of proof, whilst in reality placing higher demands on the complainer than on the person complained of.

In this kind of case where the only direct evidence is from the accused and accuser, we should ask a simple question without artifice or adornment: whether it is more likely that the complainer is lying or telling the truth.