[2024] UKUT 00142 (IAC)

It is common ground that where the Secretary of State alleges ‘dishonesty’ by the appellant it is for the Secretary of State to prove it, applying the ordinary civil standard of proof, the balance of probabilities. Mr Ó Ceallaigh refers to the decision of the Supreme Court in Jones v Birmingham City Council [2023] UKSC 27; 3 WLR 343, which post-dates the decision of the Upper Tribunal in DK and RK.

In Jones, the local authority applied for injunctions to prevent the defendants from engaging in gang-related violence and drug-dealing activity. The Supreme Court held that Article 6(1) of the ECHR  does not require the criminal standard of proof to be satisfied in respect of (a) proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the Policing and Crime Act 2009 Act or (b) proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the Anti-social Behaviour, Crime and Policing Act 2014 Act. Lord Lloyd-Jones (with whom Lord Reed, Lord Hodge, Lord Sales, Lord Stephens, Lady Rose and Lord Richards agreed), referred to the retreat from the notion of a flexible civil standard of proof according to the seriousness of the matters to be proved, and references to a “heightened civil standard” that had been traced by Sir Brian Leveson in the Court of Appeal (Jones v Birmingham City Council [2018] 3 WLR 1695). He summarised the developments in paragraph [51] of the judgment:

“I pause at this point to take stock of these developments.

(1)

It is now established that there is only one civil standard of proof at common law and that is proof on the balance of probabilities.

(2)

Nevertheless, the inherent improbability of an event having occurred will, as a matter of common sense, be a relevant factor when deciding whether it did in fact occur. As a result, proof of an improbable event may require more cogent evidence than might otherwise be required.

(3)

However, the seriousness of an allegation, or of the consequences which would follow for a defendant if an allegation is proved, does not necessarily affect the likelihood of its being true. As a result, there cannot be a general rule that the seriousness of an allegation or of the consequences of upholding an allegation justifies a requirement of more cogent evidence where the civil standard is applied…”

Nothing said by the Supreme Court in Jones impacts upon what was said by the Upper Tribunal in DK and RK as to the standard of proof. We address the evidence that is now before us below, but as to the standard of proof, the question for the Tribunal is always whether the respondent has discharged the burden of establishing whether it is more probable than not, that the individual acted dishonestly. Lord Hoffman put the matter in context in Secretary of State for the Home Department v Rehman [2001] UKHL 47:

“55.

… The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not."

The task of the Tribunal is a simple one, and the paradigm of the fact sensitive decisions made by the specialist Tribunal. As Lord Hoffman said in Re B (Children) (Care Proceedings: Standard of Proof), at [2]:

“If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.”

The inherent probability or improbability of an event having occurred will, as a matter of common sense, be a relevant factor when deciding whether it did in fact occur. It forms part of the natural process of reasoning, but should not detract from a consideration of the wide canvas of evidence, before the Tribunal reaches a decision as whether the fact to be proved, here, dishonesty, happened or not.