The standard of proof for criminal conduct in civil proceedings

Abstract

The Maltese Law of Evidence employs a probatory system of persuasion. Allegations need not be proved to an absolute certainty; the initiator has to merely reach the level of persuasion assigned by law in the forum they are proposed. Our system provides for two such standards; proof on balance of probabilities in civil proceedings and proof beyond reasonable doubt in criminal proceedings. A moot point which arises in this respect is the following: what is the appropriate measure of persuasion that the courts ought to request for allegations of criminal conduct in civil proceedings? The thesis attempts to specifically answer this central question. Unfortunately, Maltese courts rarely had the occasion to investigate this quandary. However, their English counterparts, who had ample opportunity to discuss this dilemma, proposed several approaches. The employment of both the civil and the criminal standards of proof were suggested. A third standard, similar to the American 'clear and convincing evidence', was mostly discarded. Another line of authorities suggested alternative approaches. In a landmark judgement, Lord Denning held that, for the purpose of the central question, the civil standard of proof is suitable. However, this standard contains degrees within it, which may be stretched in commensurate to the seriousness of the allegation. This gave birth to a new approach termed the 'Higher Degree of Probability Standard' approach. Subsequently, this approach was understood that rather than stretching the civil standard of proof, what changes is the cogency of evidence requested. Later, this approach was altered even more and stricter scrutiny of evidence was thereafter suggested. These approaches are analysed in detail and mounted into the Maltese scenario. After considering the proposals put forward, any deviation from the norm is determined to be conceptually erroneous. In conclusion, a homecoming solution is recommended.