What is a “Standard of Proof”?

 

A standard of proof is the the level of proof required in a legal action to bring home a certain proposition or to establish a certain fact(s); i.e. to convince a Court that a given proposition is true. The degree of proof required depends on the circumstances of the proposition or allegation being pursued.  For example, the reputational consequences to an individual of any particular decision of a Court / Tribunal is an important factor to be considered.  In simple terms, the standard of proof is the level of certainty that a Court / Tribunal must apply before it allows itself to reach a given conclusion based on the evidence presented before it.

 

The standard of proof in civil litigation is that a fact must be proven on the “balance of probabilities” based on the evidence properly presented before the Court. This means that upon consideration of the evidence admitted by the contesting parties, the account that is more likely to be true is that which shall be accepted.   In contrast, the standard applied in criminal cases is that the Court must be satisfied of the Defendant’s guilt beyond a reasonable doubt- a higher standard than the standard used in civil litigation.   The question then arises; what standard should a Tribunal of Inquiry employ given the far-reaching consequences of its work and conclusions?

 

A Tribunal of Inquiry is not a Court of law.  However, it is a process with accepted (potentially serious) consequences for all concerned.  It is therefore obliged to operate an appropriate standard of proof.   The Moriarty Tribunal was chaired by a Judge of the Irish High Court and had numerous Senior Counsel and Junior Counsel in its full time employment, along with a full time Solicitor and a large support / administrative staff.  It bore all of the hallmarks of a Court process to an outside observer.  The Moriarty Tribunal’s procedures (most notably its procedures in public sittings) bore a close resemblance to Court procedures; aesthetically at least.  However, there are sharp divergences between the protections offered to persons involved in Court proceedings when compared to the protections provided to those persons whose reputations were adversely effected by the final report of the Moriarty Tribunal.

 

“Tribunals are really very rough instruments.  They do intrude a lot, without a doubt, into people’s rights. Things are done which you could never get a chance of doing in the courts, and which, arguably, should not be done, but the deal we have all made in a way is that there were such terrible things going on that we set up tribunals and reduced people’s rights and anybody who gets dragged into these tribunals have their rights walked all over, rights that they would have had if they were down in the courts or anywhere else.” 

 

- Colm Keena, Public Affairs Correspondent of the Irish Times, speaking on the Vincent Browne show on RTE on the 28th May, 2007.