Chief Justice Elias’s argument for criminal standard in disciplinary prosecutions

In Z v Dental Complaints Assessment Committee [2008] NZSC 55, which I wr0te about in my last post, the Chief Justice of New Zealand, Dame Sian Elias, argued in a powerful dissent that the standard of proof required in disciplinary proceedings should be the criminal standard, as it is in England.  This is her argument, as summarised by her Honour:

‘[47] … I think the time has come to say simply that the criminal standard of proof applies.  I summarise the reasons why I am of that view, which have already been foreshadowed.

[48]    First, making allowances for the dress of inherent probabilities under which guise much of the discussion has been conducted, the preponderance of authority favours the criminal standard, at least where the charges are serious or entail conduct which is criminal.  That is the effect of the decisions of the Privy Council in [Campbell v Hamlet [2005] 3 All ER 1116 (PC), Lanford v General Medical Council [1993] 1 AC 13, and McAllister v General Medical Council [1993] All ER 982 and Sadler v General Medical Council [2003] 1 WLR 2259 (PC)].  It is also consistent with the decisions in [Bhandari v Advocates Committee [1956] 1 WLR 1442 (PC)] and Re a Medical Practitioner [[1959] NZLR 784].  In both cases, the difference between the criminal standard and the standard required by the context was thought to be a difference “of little importance”.  In the present case the charges of indecent touching clearly meet the level of seriousness envisaged by cases such as McAllister and Sadler.  I would myself however draw no distinction between charges laid under s 54 of the Dental Act according to whether they are or are not in substance criminal or properly classified as “serious misconduct”, on the basis that there should be a single standard of proof under the section.  In this, I would apply the approach adopted by the Privy Council in Campbell v Hamlet and Lanford.

[49]    Nor do I think such result is different in substance from the standard attempted in the New Zealand cases through variation of “the degree of satisfaction … according to the gravity of the fact to be proved” or through “a sliding scale of probability”.  “Flexibility” of application however risks inconsistency and inequality in the treatment of like cases.  Frank application of the criminal standard avoids much conceptual confusion and minimises inconsistency in treatment.  William Young J in F [v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA)] cut through the tangle to recognise the criminal standard as appropriate.  In [R (McCann) v Crown Court at Manchester [2003] 1 AC 787], Lord Steyn thought that “pragmatism” dictated that the task of the magistrates in making anti-social orders be made “more straightforward”
 by applying the criminal standard.  Although a comparison between professional disciplinary tribunals and lay magistrates is not exact, being straightforward is not a bad rule of thumb in promoting consistency.  As I have already mentioned, the effect of recognising the criminal standard should not be exaggerated.  It simply requires the decision-maker to be sure of the facts that justify imposition of penalties under the Act and the opprobrium that inevitably accompanies a finding of serious professional or criminal misconduct.

[50]    Secondly, it seems to me that the application of a balance of probabilities standard is based on a misunderstanding of the nature of disciplinary processes.  They are not civil proceedings, in the sense of claims between litigants similarly situated and in respect of whom the risk of error in outcome can be regarded with relative equanimity, in the manner described by Justice Harlan in the passage I have cited at para [31].  Nor are they criminal proceedings.  The outcome is not criminal conviction and the procedures prescribed by the statute are not criminal processes.  On the other hand the Dental Act sets up a statutory regime for professional regulation.  The Complaints Assessment Committee and the Dentists Disciplinary Tribunal are administrative bodies which conduct inquiries and are empowered by statute to impose heavy sanctions.  This may not be exactly “government-initiated process”, but it is statutory regulation in which analogy with civil proceedings (which attempt relative justice between litigants) is less convincing than analogy with criminal process, as indeed the Full Court suggested in Gurusinghe [v Medical Council of New Zealand [[1989] 1 NZLR 139 (HC)].

[51]    Thirdly, I do not think that application of some of the attributes of civil proceedings or denial of some of the protections of criminal proceedings can be determinative of the standard of proof to be applied.  I do not think it matters that the method of admitting evidence is more relaxed before the Dentists Disciplinary Tribunal than in criminal proceedings.  I agree with the views expressed by Justice Brennan in Re Winship [(1969) 397 US 358] that it is important not to misapply “labels of convenience”.  For some purposes it may be necessary to classify disciplinary proceedings as civil or criminal.  It was necessary to do so, for example, in Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [[2006] 3 NZLR 577], for the purpose of deciding whether privilege was according to the provisions applicable to civil or criminal proceedings.  (It was unnecessary in that case to consider the question of the standard of proof.)  But it should not be assumed that a classification for one purpose is a classification for all purposes.  And even where proceedings are properly classified as civil, it does not mean that the standard of proof to be applied is the balance of probabilities.  That is illustrated by McCann.  There, the House of Lords classified the procedure for making anti-social behaviour orders as civil for the purpose of application of the civil rules of evidence, allowing hearsay evidence to be admitted.  That classification did not however determine the standard of proof.  Lord Steyn held that the magistrates should apply the criminal standard in deciding whether a defendant had acted in an anti-social manner.  This approach, he thought, would “facilitate correct decision-making and should ensure consistency and predictability in this corner of law”.  Lord Hope, in the same case, emphasised that the classification of the proceedings as civil did not determine the standard of proof:

But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings.  I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.

Lord Hutton, who delivered the other concurring judgment, also endorsed application of the criminal standard of proof.

[52]    Lord Hope’s view that the standard of proof to be applied is determined by the interests of fairness is the approach adopted in respect of professional disciplinary proceedings by the Privy Council in McAllister.  What was of “prime importance” was that the charge and conduct of the proceedings should be fair in all respects.  Lord Hope’s conclusion that fairness requires the criminal standard to be applied when allegations of a criminal or quasi-criminal nature are made accords with the cases cited in para [33] that the criminal standard, or something indistinguishable from it, applies in professional disciplinary proceedings where serious allegations are made.  It should be noted that the consequences of significant penalty and stigma are much more serious in the case of charge found proved by the Dental Disciplinary Tribunal than is the case with the anti-social behaviour orders considered in McCann.

[53]    Fourthly, I do not think that the standard of proof is affected by the purpose of professional disciplinary proceedings in maintaining professional standards, for the protection of the public.  As Justice Brennan put it in Re Winship, “civil labels and good intentions” do not overcome considerations of fairness.  In a later case, Justice Blackmun expressed the view that, despite the protective intent of delinquency orders, where significant stigma or penalty could result, it offends “fundamental fairness” for less rigorous standards of proof to be applied than in criminal proceedings.

[54]    Finally, it seems to me that the scheme of the statutory grounds contained in s 54 provides support for application of the criminal standard of proof.  Section 54(1) permits the Dentists Disciplinary Tribunal to impose penalties under s 55 where “the practitioner … [h]as been convicted … of any offence punishable by imprisonment of not less than 3 months” and the Tribunal considers that the circumstances of the offence “reflect adversely on the practitioner’s fitness to practise as a dentist …”.  In most cases of serious criminal conduct in the course of practise it is to be expected that prosecution will follow.  In such cases, the Tribunal will act on proof of a conviction that will have been obtained according to criminal procedure and upon proof beyond reasonable doubt.  In cases where it will not be an abuse of power for the Complaints Assessment Committee to bring a charge ahead of or instead of allowing the criminal process to be completed (the topic I next address), dissonance between the standard of proof according to the sequence followed in the particular case sets up potential inconsistencies in treatment and could conceivably lead to perverse incentives in choice of forum.  It is difficult to think of any adequate reason for difference.

[55]    In conclusion, the standard of proof depends upon what is required for reasons of fairness.  The standard of proof beyond reasonable doubt protects against error in decision-making.  It promotes consistency.  All charges under s 54 are serious.  Where serious disciplinary charges are brought under statutory process in circumstances where substantial penalties may be imposed and damage to reputation and livelihood is inevitable if adverse findings are made, fairness requires application of a higher standard of proof than one on the balance of probabilities.  The application of such standard is supported by authority and is consistent with the functions and scheme of the Dental Act.’

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