RULING

STANDARD OF PROOF
(8th November, 2007)

In making findings pursuant to its Terms of Reference, the Tribunal is and has at
all material times, been required to apply a standard of proof. That standard is
not the criminal standard of proof beyond reasonable doubt, and it is noted that
this is not contended for in submissions received. In the circumstances of the
matters falling to be dealt with in the second part of its Report, the Tribunal sees
no reason to depart from the approach adopted in the first Part, that is, the civil
standard, a flexible approach, proportionate to the nature and gravity of the
matters arising.

While the submissions recently received on this matter have generally been
constructive and helpful to the Tribunal, it is well to allay some possible element
of misinterpretation. It cannot be emphasised too often that Tribunal proceedings
are not adversarial but inquisitorial. They are not a means of establishing
criminal or civil liability. Adopting the language of the head note of a leading
Canadian case, a “Commission of Inquiry is not a Court or Tribunal and has no
authority to determine legal liability; it does not necessarily follow the same laws
of evidence or procedures that a Court or Tribunal would observe. A
Commissioner accordingly should endeavour to avoid setting out conclusions
that are couched in the specific language of criminal culpability or civil liability for
the public perception may be that specific findings of criminal or civil liability have
been made”.1 In the words of Hardiman J. in O’Callaghan v. Mahon2, “a Tribunal
in the end of the day merely reports its opinions and makes recommendations. It
does not make binding findings of fact, though its report can, of course, have the
effect of vindicating some persons and utterly destroying the reputations of
others”. It is for this reason that the Courts and Parliaments in this jurisdiction,

1
Supreme Court of Canada (1997) 3 S.C.R. 440.
2
[2006] I.R. 32, at 74.

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and elsewhere, have imposed strict limits on the extent to which the proceedings,
including the findings, of Tribunals may be used in civil or criminal proceedings.

The Tribunal is mindful that apart from the Canadian case, other Inquiries in other
jurisdictions have sought to avoid an excess of technical legal terminology and to
that end this Tribunal stated as follows in Part I of its Report:-

“1.60 One of the matters which required careful consideration in the

course of Report preparation was the standard of proof appropriate to
justify conclusions or findings that could be adverse to the reputation of
persons involved, whether individuals or corporations. In its appraisal of
this matter, it seemed to the Tribunal that the adoption of a criminal
standard of proof was neither warranted nor realistic; as indicated earlier
in this chapter, the conclusions in a report such as this are in no sense
findings of either criminal or civil liability in law, and represent no more
than what should be a reasoned and informed expression of opinion.
Moreover, the Tribunal has on a number of occasions indicated that
having regard to its inquisitorial, as opposed to its adversarial character, it
would not be bound by rules of evidence or procedures designed for Court
cases. In discharging its functions, rules, either for the admission of
evidence or the burden of proof, evolved for the purpose of the
administration of justice in criminal or civil proceedings, would inhibit and
confine the functioning of the Tribunal, in particular if it could express
findings or conclusions only if so convinced of them that no alternative
view could be correct. At the other extreme, however, it seemed equally
clear that findings, which could impact seriously on persons affected,
could not be based upon evidence that was frail, untested or otherwise
subject to real infirmity. It is noteworthy that a not dissimilar approach was
adopted by Dame Janet Smith in the Inquiry she conducted relating to the
multiple deaths caused by the conduct, as a medical practitioner, of Dr.
Harold Shipman, and canvassed by Lord Saville in the Saville Inquiry

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 established to enquire into and report upon the events of Bloody Sunday
in 1972”.

Paragraph 1-60 made it clear that while on the one hand the Tribunal eschews a
criminal standard of proof, equally it set its face against a casual or whimsical
standard having regard to the seriousness of the matters under review. Whilst
seeking to avoid characterising its approach in legal terms, having regard to
some of the submissions made, it must nevertheless be stated, that the standard
applied is that normally described as the civil standard or the standard of proof
on the balance of probabilities, as defined by the Supreme Court in
Georgopoulus v. Beaumont Hospital Board [1998] IR 3132.

The suggestion that because the conclusions in a report represent no more than
a reasoned and informed expression of opinion this in some way reflects a new
standard of proof is utterly mistaken. These words are not a description of the
standard of proof but of the product of applying a standard of proof, a description
of the basis upon which findings are made and/or conclusions are reached. In
any event, lest some unwarranted pejorative element be attributed to the concept
of “opinion” used appropriately in matters of arriving at decisions or conclusions
generally, it is worth remembering that this is the very designation attached to
binding determinations of both the US Supreme Court and the House of Lords,
and that regular usage in Ireland in both the Supreme and High Courts evinces
reference to opinion on the part of individual Judges.

Lastly, questions of the manner in which the standard of proof is expressed were
more recently canvassed at length in the case of R(N) v Mental Health Review
Tribunal & Ors (2006) 2 WLR 850. In its judgment, the Court of Appeal,
regardless of differences in wording of the description of the standard in many
cases over the years, recognised the essentially flexible nature of the civil
standard of proof, an approach which is consistent with the judgment of Hamilton

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CJ in Georgopoulus where, citing Sir. William Wade in the Sixth Edition of his
work on Administrative Law, the then Chief Justice stated as follows:

“But the civil standard is flexible, so that the degree of probability required
is proportionate to the nature and gravity of the issue. Where personal
liberty is at stake, for example, the Court will require a high degree of
probability before it will be satisfied as to the facts justifying detention; and
the requirement will not be much lower in matters affecting livelihood and
professional reputation, or where there is a charge of fraud or moral
turpitude.”

Moreover, whilst mindful of the necessary legal distinction between judgments in

adversarial Court proceedings, which inherently carry binding consequences in
criminal or civil law and Tribunal findings, which do not, it is recognised that
Tribunal findings may still very significantly affect the reputation or other interests
of persons involved. It is also acknowledged that this should in no sense affect
the quality of deliberation or care required to be observed in discharging the
functions of a Tribunal and whatever procedural flexibility may be accorded to a
Tribunal, it nonetheless is clearly required to apply the same care, diligence and
vigilance in the evaluation of facts as those concerned with the adjudication of
adversarial disputes.

Subject to the foregoing, it is clearly impracticable to seek to formulate an exact

definition of the requisite standard that must be satisfied before making findings
on matters of great seriousness within the Terms of Reference, but in addressing
all individual instances, the Tribunal will have due regard to the submissions that
have been made to it, along with authorities cited, as well as any such further
submissions as may in further course be made. Having regard to the
submissions made and this Ruling, it has not been deemed necessary to
ventilate the matter in public hearings.