Interpreting the standard of proof

Every defendant lawyer knows the standard of proof is the greatest shield in court. In civil trials, the standard is the balance of probabilities – that is, whose version of events is more likely. For this reason, defendant lawyers try to nudge the goalposts by reminding their tribunal that ‘it is for the claimant to prove the case’. In criminal cases, the standard is much higher. What used to be called ‘beyond reasonable doubt’ is now expressed in court as ‘being sure’. The question I wonder, in cases where the only evidence is what the parties say, is whether the courts favour the claimant too often.

Starting out as a common law barrister, I used to represent defendants who were charged with driving offences. Their solicitors often advised them to plead not guilty on the basis that they had not been given the ‘statutory warning’. Clever argument, that one. It is mandatory under section 7(7) of the Road Traffic Act 1988 (as found in Murray v DPP [1993] RTR 209) that the police constable administering the breathalyser test informs the subject that they will be liable to prosecution upon failing to provide a sample. So vital is this warning that the failure to provide it will nullify the results of a positive test. In other words, the law does not penalise you for failing a breathalyser test if the procedure was not followed.

I felt this was a clever defence because it was plausible. The standard of proof in criminal matters, as you are aware, is that the court has to be ‘sure’ of the defendant’s guilt. Indeed, these defendants might not have been lying. They said that they did not recall being given options regarding the test. They said that they did not remember the police constable completing the Manual of guidance drink and drug driving (MGDDA) form. The procedure was ‘quick’ and ‘rushed’. This was believable from someone who had consumed at least some alcohol and might not remember much.

The problem with this defence was that the courts grew sceptical. An experienced bench had heard it previously and knew it was dubious. The bench heard a constable, usually experienced, recount what apparently happened – and then it listened to an alleged drunk driver. You know who is more credible.

But it is time to show my colours. For all that I became cynical about the ‘statutory warning’ argument, I found it convincing in one respect. Yes, it was probably nonsense to say the warning was not given – but could the bench be sure?

The limits of knowledge, while of little interest to tribunals, are important to forming a view that is based on the standard of proof. If the only evidence comes from one person testifying against another, it seems odd to be sure. You might say that nobody would be convicted if we took the standard seriously, but that is not true. Police constables would adapt, turning on their body worn footage while giving the statutory warning. We should expect them to present it in court. Drunk drivers would not get off – they would simply have a fairer trial. If they pleaded guilty early, that would save court time and expense.

Why does this anecdote matter? I fear it is common for the courts to reach a view that cannot be justified to the requisite standard. I have seen the courts reach conclusions about a party’s actions in the absence of a medical report or photographic evidence. I wonder if the courts reaching these verdicts are sure, or reasonably could be.

I have fewer doubts in my civil work, which is what I do now. Consistent and credible testimony usually is sufficiently compelling to satisfy the civil standard of proof. Even so, I did wonder about the standard of proof in a recent personal injury trial. The claimant had been involved in a series of accidents and the judge found the index accident (the relevant one for our purposes) had contributed to the injuries. However, the judge felt unable to quantify the proportion of injuries owing to the index accident and awarded zero compensation. This arguably raised the standard of proof too high. If an accident caused some level of injury, the court should award the claimant at least nominal damages and costs. I believe these cases point to a need for greater clarity on how tribunals should interpret the standard of proof. Where it is one person’s word against another, there ought to be less emphasis on testimony and more on what the parties can prove through legal reasoning, footage and medical evidence.

Alexander Bunzl is a barrister at 4-5 Gray’s Inn Square, London