RULING STANDARD OF PROOF (8 th 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,
Supreme Court of Canada (1997) 3 S.C.R. 440.  I.R. 32, at 74.
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:-
â€œ1.60 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
established to enquire into and report upon the events of Bloody Sunday in 1972â€?. 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  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 â€œopinionâ€? 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
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: â€œBut 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.â€? 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.