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Law, Probability and Risk Advance Access published online on May 14, 2009
Law, Probability and Risk, doi:10.1093/lpr/mgp011
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© The Author [2009]. Published by Oxford University Press. All rights reserved.

Is the civil ‘higher standard of proof ’ a coherent concept?

Ennis McBride{dagger}

Department of Philosophy, School of Humanities, University of Nottingham, Nottingham NG7 2RD, UK

{dagger} Email:apxecjm{at}exmail.nottingham.ac.uk


  Abstract

The standard of proof used in criminal cases is that of proof ‘beyond reasonable doubt’, whereas in civil cases it is that of the ‘balance of probabilities’. It is commonly accepted that these standards are coherent ones but a problem arises where criminal conduct has to be proved in civil proceedings: which standard of proof should be used then? The courts have attempted to resolve this problem by rejecting the use of a third, intermediate standard of proof for such cases, while at the same time requiring a ‘higher standard’ of proof in them. This article argues that consideration of this enhanced standard of proof demonstrates a problem with the concept and questions whether it is a coherent one, with reference to the various interpretations of the ‘higher standard’ commonly proposed to account for legal decision making. In particular, a critique is presented of two recent decisions of the House of Lords, purporting to settle the issue definitively.

Keywords: standards of proof; higher standard of proof; increased scrutiny; degree of belief; degree of probability


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