Interesting …………………Balance of probabilities for release of prisoner

House of Lords

Published June 24, 2008

Life Sentence Review Commissioners v D

Before Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

Speeches June 11, 2008

The standard of proof to be established when the Life Sentence Review Commissioners were considering whether a prisoner who had served his tariff was no longer a risk to the public was the balance of probabilities.

The House of Lords so held, allowing an appeal by the commissioners from the Court of Appeal of Northern Ireland (Lord Kerr, Chief Justice, Lord Justice Campbell and Lord Justice Higgins) (\ NI CA 33) who allowed the appeal of D from the dismissal by Mr Justice Girvan in the High Court of Northern Ireland (\ NI QB 33) of his application for judicial review of the commissioners’ decision not to release him on licence.

Mr John Larkin, QC and Mr Donald Sayers for the commissioners; Mr Gerald Simpson, QC and Mr Desmond Hutton for D; Mr Paul Maguire, QC and Mr David Scoffield for the Secretary of State for Northern Ireland, as intervener.

LORD CARSWELL said that the applicant was convicted in 1982 of murder and sentenced to life imprisonment. He was released on licence in April 1996.

On March 5, 1997, he was arrested in consequence of an allegation by his niece, G, then aged 13, of buggery, indecent assault and gross indecency. On March 7, 1997 his licence was revoked by the Secretary of State for Northern Ireland.

Further allegations were made by G’s younger sister, L, and charges were brought against the applicant in respect of G’s complaint. Those charges were withdrawn by the Director of Public Prosecutions on January 1998, apparently on the ground that it was not in the best welfare interests of the girls to require them to give evidence.

The applicant remained in prison and his suitability for release received periodic consideration. The Life Sentence Review Board declined to recommend his release, on the ground that they considered that he had committed the offences of which his nieces had complained and there was a continuing risk that he might commit further similar offences if released.

The Life Sentences (Northern Ireland) Order (SI 2001 No 2564 (NI 2)) came into force on October 8, 2001 and the commissioners were appointed to advise the secretary of state on the release or recall of life prisoners.

A panel of commissioners considered the complaints made by G and L. Both had been interviewed by social workers and the interviews recorded on video which the panel viewed. The panel received evidence from police officers, social workers, a forensic scientist, psychologists, the probation service and a prison governor.

The applicant gave evidence on his own behalf and called witnesses in his support. Neither G nor L was called to give evidence.

The panel was satisfied on the balance of probabilities that the applicant sexually abused both G and L. The panel then considered the element of risk of the applicant committing further serious harm if released and decided that he should not be released at that stage.

The main subject of the appeal was the standard of proof applicable in such cases. Only two standards were recognised by the common law: proof on the balance of probabilities and proof beyond reasonable doubt. The latter standard was that required by the criminal law and in such areas as contempt of court and disciplinary proceedings brought against members of a profession. The former was that standard applicable to all other civil proceedings.

It was quite apparent that the panel had devoted very careful and anxious attention to the question. They went about their task in the proper manner. The evidence against the applicant was clear and cogent and pointed very strongly to the conclusion reached by the panel.

Lord Brown delivered a concurring speech; Lord Bingham, Lord Scott and Lord Neuberger agreed with Lord Carswell.

Solicitors: Cleaver Fulton Rankin, Belfast; Madden & Finucane, Belfast; Treasury Solicitor.

Author: GLBTQ Jamaica Moderator

Activist and concerned gay man in Jamaica with over 19 years experience in advocacy and HIV/AIDS prevention work, LGBT DJ since 1996.

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