Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 132 (AAC)

Fecha: 14-Jul-2022

Ground 3 – civil or criminal standard of proof

Ground 3 – civil or criminal standard of proof

88.

This ground is that the Tribunal’s finding that the civil, rather than criminal, standard of proof applied in First-tier Tribunal MPN proceedings was based on flawed reasoning:

(a)

the Tribunal was “wrongly influenced” by the forum in which the appeal was conducted and by other provisions of DPA 2018 which allow criminal prosecutions to be brought by the Commissioner and the DPP. Neither consideration shed light on the standard of proof;

(b)

the Tribunal was “wrongly influenced” by section 155(1)(a) of the DPA 2018’s use of ‘satisfied’ since this is relevant only to the burden of proof;

(c)

the Tribunal “wrongly concentrated” on terminology, in particular the term ‘administrative fine’ which was not “dispositive of the issue”;

(d)

the Tribunal “wrongly did not take into account” certain features of a MPN all of which pointed to a criminal standard of proof. These were:

(i)

a penalty is punitive, not coercive, and the potentially large amounts involved may easily be capable of destroying a business and its employees’ livelihoods;

(ii)

a penalty was potentially an additional sanction for a breach already dealt with by a coercive sanction such as an Enforcement Notice;

(iii)

the quantum of a penalty is “referable to criteria that mimic the criteria imposed by criminal courts on conviction for offences”;

(iv)

“a free-standing compensation regime for those harmed by the conduct the subject of the MPN, with the penalty being paid into Consolidated Revenue”;

(v)

the enforcement system is the same as that applicable to a fine imposed by a Magistrates’ Court;

(vi)

ECHR and domestic authorities cited to the Tribunal (not specified in the Appellant’s notice of appeal to the Upper Tribunal); and

(vii)

“the common law principle of doubtful penalisation”.