Tag Archives: Presumption of Guilt

October 15 2017 – “‘Presumption of innocence’ – innocent until proven guilty – is a high standard of justice. ‘On the balance of probabilities’ – guessing – is a low standard of justice. Bishop Bell was judged by those with a low standard of justice. This led to a miscarriage of justice. Restoration of justice is therefore required by those with a high standard of justice” ~ Richard W. Symonds – The Bell Society

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“Presumption of innocence” – innocent until proven guilty – is a high standard of justice. “On the balance of probabilities” – guessing – is a low standard of justice. Bishop Bell was judged by those with a low standard of justice. This led to a miscarriage of justice. Restoration of justice is therefore required by those with a high standard of justice” ~ Richard W. Symonds – The Bell Society

https://www.disabilitylaw.ca/disability-lawyer-calgary/proof-on-balance-of-probabilities

What does proof on a balance of probabilities mean?

The civil standard of proof is proof on a balance of probabilities. The criminal standard is proof beyond a reasonable doubt. This article deals with civil standards of proof. Saying something is proven on a balance of probabilities means that it is more likely than not to have occurred. It means that it is probable, i.e., the probability that some event happens is more than 50%. So mathematically proof on a balance of probabilities is 50.1% likelihood of something having occurred.
A lawyer I once knew explained it this way. You see the scales of justice. They are evenly balanced. Both sides are the same height. But if one side has the weight of a feather added to it, causing it to go down and the other side to go up. Now that side with the weight of a feather has won. Proof greater than that is not required. Simply a balancing of both sides seeing which side has the stronger proof.
Quotes from cases where judges have commented on the civil standard of proof follow:
McIver v. Power, [1998] P.E.I.J. No. 4, Prince Edward Island Supreme Court – Trial Division, MacDonald C.J.T.D.,
5 In any civil case the plaintiff must prove their case on a balance of probabilities if they are to succeed. This means that the plaintiff must prove that his facts tip the scale in his favor even if it is only a 51% probability that he is correct.
F.H. v. McDougall, [2008] S.C.J. No. 54:
44 Put another way, it would seem incongruous for a judge to conclude that it was more likely than not that
an event occurred, but not sufficiently likely to some unspecified standard and therefore that it did not occur.
As Lord Hoffman explained in In re B at para. 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.
In my view, the only practical way in which to reach a factual conclusion in a civil case is to decide whether it
is more likely than not that the event occurred.
[49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities.
Snell v. Farrell, [1990] 2 S.C.R. 311 is a medical malpractice case and the issue was whether the plaintiff required a firm medical opinion to establish a causal link between her surgical outcome and the defendant doctor’s actions. Sopinka J., speaking for the Supreme Court of Canada, commented on the difference between medical certainty and legal certainty. He commented that “near certainty” is the medical standard of causation while the legal standard requires only a 51% probability. He concluded that a firm medical opinion is not required to establish causation in law. Rather, causation is a question to be determined by weighing all of the evidence in order to determine whether a causal link has been established on a balance of probabilities.
Veerasingam v. Canada (Citizenship and Immigration), 2012 FC 241 — Federal Court of Canada
. . .paras 29 that the term “balance of probabilities” was equivalent to “more likely than not”, but with two distinct steps involved as to the burden of proof and legal test. […] to be persuasive evidence of that risk “on a balance of probabilities” or to show that it was “more likely than not.” The Board uses this terminology throughout its decision. […] As demonstrated, the Board was mindful of its role in considering the evidence of “risk” to the Applicant on a balance of probabilities. . .
Roseanne Conley v. Keel Construction, 2005 NBQB 263
[2] On the question of liability the onus of proof must be met by the claimant, Mrs. Conley and the standard of proof is that of a balance of probabilities, i.e. is it more likely than not that the incident occurred in the manner she alleges.
Bhullar v. I.C.B.C., 2009 BCPC 44
But the burden of proof here is not like a criminal charge, beyond a reasonable doubt. The burden of proof is on the balance of probabilities, more likely than not. . . While I have an expert opinion, which I accept, that this car was either driven with a key or towed, for the reasons I have already gone into, I do not find this vehicle was towed, which means the likelihood is, more likely than not, balance of probabilities proven the vehicle was driven with a key. The only people that had keys were the claimants. Nobody else. If that is true, which seems to be true on the facts, then again more likely than not, Mr. Bhullar was involved in the theft and burning of the vehicle.
Mitcham v. Canada, 2003 FCA 340 Federal Court of Appeal
. . . While Mr. Mitcham is now diagnosed as having fibromyalgia symptoms, the Board, weighing the evidence on a balance probabilities, held that he was more likely than not capable of regularly . . .
R. v. Oakes, [1986] 1 SCR 103 — 1986-02-28 Supreme Court of Canada
. . . in such a case and it is sufficient if the court considers that upon the evidence before it it is more likely than not that the fact does not exist. . . . The test is the same as that applied in civil proceedings: the balance of probabilities. . .
Canada (Minister of National Revenue) c. Fabrication GMCA Inc., 2002 FCT 1260 Federal Court of Canada
. . . (3) The evidence must show, on a balance of probability, that it is more likely than not that collection would be jeopardized by delay. . . Lamer J. for her to conclude that on a balance of probabilities it was more likely than not that giving the respondent further time could compromise the collection in question. . .
R. v. Turner, 2004 BCSC 1778, Supreme Court of British Columbia
. . . [14] The standard of proof in civil trials is proof on a balance of probabilities; namely, proof that something is probable or more likely than not. . . . . In criminal trials, such as this trial, the standard of proof beyond a reasonable doubt is higher than the civil standard of proof on a balance of probabilities. . .
So you can see the test of proof in a civil case is whether it is more likely than not, that something occurred. No more, no less.


Author:
Allan Bayda

Bishop Bell – “The Rule of the Lynch Mob” – Church of England Newspaper – October 2015 [Archives] – The Justice Gap – November 2016

http://www.churchnewspaper.com/42762/archives

[Source : The Justice Gap https://richardwsymonds.wordpress.com/2016/11/24/bishop-bell-and-gaps-of-injustice-jon-robins-november-25-2016/ ]

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The rule of the lynch mob

Well let’s get it out of the way. All child abuse is wrong and horrible. All claims of child abuse should be investigated properly and the offenders, if found to be guilty in a court of law, should be flung into prison for a very, very long time.

So now we’ve done the formalities. There is much discontent with the Church of England’s behaviour over the way it has handled abuse allegations against one of its greatest sons, George Bell – a great ecumenist, liturgist, wartime leader and friend to Dietrich Bonhoeffer and the Confessing Church.

It was announced last week that a legal civil claim has been settled by the Diocese of Chichester regarding sexual abuse claims against Bishop Bell. The allegation was first made in 1995 and was not reported to the police. The case was reopened in 2013 and now an unknown sum of money has been handed over.

But why on earth is the Church of England traducing the reputation of one of its greatest wartime spiritual leaders on the basis of recent allegations about the events of 65 years ago? We talk about cases of historic abuse in reference to Jimmy Savile crimes during the 60s, 70s and 80s, but this case is truly prehistoric.

Bishop Bell died in 1958 and the crimes of abuse he is alleged to have committed against a young child date from the late 40s and early 50s when the Bishop himself was in his late 60s and early 70s.

He is effectively being tried and convicted by the Church of England with little thought for proper justice and due process.

“We are all diminished by what we are being told,” said the modern Bishop of Chichester. He goes on to explain: “Our starting point is response to the survivor. We remain committed to listening to all allegations of abuse with an open mind. In this case, the scrutiny of the allegation has been thorough, objective and undertaken by people who command the respect of all parties.

“We face with shame a story of abuse of a child; we also know that the burden of not being heard has made the experience so much worse. We apologise for the failures of the past.”

And here much of the problem lies. The starting point must be justice, not just a concern for the ‘survivor’, because that is to jump to conclusions. The Bishop, and the independent assessors, have missed out a vital part of the process of justice that is that the accused is presumed innocent and has the right to defend themselves.

The indecent haste to describe Bishop George Bell as an abuser is a failure of nerve on the part of the Church of England. The diocese of Chichester may have failed to respond properly when the allegation of abuse was first reported in 1995, and although the accuser was offered pastoral support, this should not lead to any sort of admission of guilt on behalf of George Bell.

There is hysteria and a lynch-mob mentality surrounding some of the cases of historic abuse. We have seen this in the false allegations of murder, rape and ritual abuse made against politicians such as Ted Heath, Leon Brittan and Harvey Proctor. The Church is now as much a part of this overreaction as any other part of society.

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Of course there are historic cases of abuse, and there was a long period of time when child protection procedures were unknown and reports of abuse were dealt with poorly. There were cover-ups and failures to believe the victims of abuse. But we’ve had at least two decades of improving things, legislating and regulating to make sure that protections are better, and that children are properly listened to and dealt with.

These improvements should have lessened the sense of hysteria and panic surrounding these cases. Abusers such as Jimmy Savile could never have thrived in today’s climate of safeguarding. Yet the case of George Bell proves that we are living in a state of perpetual and rising fears over allegations of child abuse and we in the Church of England have no answers to these fears. In fact, we are complicit in the lynch mob.

Remember the ritual abuse controversy of the 1980s and 1990s in which social workers and police were convinced that Satanists were involved in the mass killing and abuse of children. And there was no evidence at all in the end.

Remember also the mob that surrounded the home of a paediatrician. The witch-hunt is back and no prominent person is safe from being named – alive or dead. And if named their reputation is trashed.

This is the very opposite of the Christian faith that decries fear and says ‘judge not, lest ye be judged’.

George Bell, with his reputation for bravery, and his leadership in bringing the victims of Nazism to safety, opposing carpet-bombing of German cities and supporting the martyrs of the Confessing Church, is the type of church leader who would have confronted this lynch mob with calm courage.

There may be a stain on his reputation for a short time but his memory will be cherished again in future especially when we look back at this time of witch-hunting with a proper sense of perspective.

6 Responses to “The rule of the lynch mob”

  1. EveOxford  07/11/2015 at 15:29

    “We are all diminished by what we are being told,” – actually, no. But we are diminished by the Church, in our name, presuming to judge, to apologise and then to pay compensation. If George Bell were still alive then perhaps we would have been treated to BBC film of a dawn raid of his palace (before the police admitted they shouldn’t have done that). Perhaps we’d have had a policeman standing in front of the Bishop’s Palace inviting “people who will be believed” to step forward. Perhaps his career would have been ruined and after a year of investigations the police would say they had nothing on him after all (as with Paul Gambaccini). Who on earth was selected by the diocese of Chichester to sit in judgment on the reputation of this bravest of Christians?

  2. Tony Foreman  07/11/2015 at 15:40

    In a wicked world we cannot, unfortunately, do without suspicion. But that suspicion has to be equally apportioned – to Bishop Bell, to the complainant and in regard to the competence of the C of E committee that saw fit to take the matter into its own hands and tacitly admit Bishop Bell’s guilt by issuing an apology. This is not justice: open and honest. It is an illegitimate, anonymous, unaccountable exercise of power. It is wholly against everything the C of E ought to stand for.

  3. Fr David Lawrence-March  07/11/2015 at 21:50

    Well doe, CofE Newspaper for a measured, Christian response.

  4. Fr David Lawrence-March  07/11/2015 at 21:52

    Whoops, ‘done’ !

  5. Richard  08/11/2015 at 07:35

    In 1995 Bishop Bell had been dead for 37 years. Dead people are beyond the reach of civil justice so how could the bishop at that time have gone to the police? And why, if they could have done, didn’t the acuser. Something stinks about this whole witch hunt.

Lord Lexden on Bishop Bell and Presumption of Innocence – House of Lords – November 16 2016

https://hansard.parliament.uk/Lords/2016-11-16/debates/DE488DE7-5743-45D2-9EB1-6C8AEEF6908E/PolicingAndCrimeBill#contribution-2F79B283-7175-4D3E-A25F-775AAFEFC2E4

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My Lords, much gratitude is due to the noble Lords, Lord Paddick and Lord Campbell-Savours, for introducing and seconding this amendment, drawing on their long experience of work and reflection in relation to a very important issue. I shall return briefly to a question that has come up naturally in the course of our discussion—the simple question of whether the presumption of innocence until proved guilty is still in practical, effective existence where allegations of sexual abuse are concerned. Last week’s Henriques report showed that during Operation Midland innocent people were treated as if they were guilty, even though there was no serious evidence against them. A recent detailed study by the Oxford University Centre for Criminology concluded that there has been a cultural shift towards believing allegations of abuse and the presumption is now in favour of believing those who present themselves as victims. The study documents in great detail the immense harm done to very large numbers of ordinary, innocent people who had unfounded allegations made against them. In any walk of life, a person whose name appears publicly in relation to a mere allegation of abuse can expect to suffer much hardship. This wholly unsatisfactory state of affairs extends from state to Church, from the living to the dead.

As I have mentioned on previous occasions in your Lordships’ House, grave damage has been inflicted on the reputation of one of the greatest 20th century bishops of the Church of England, George Bell, after a completely secret and internal investigation of a single, uncorroborated complaint, made many decades after his death. At least the injustice done as a result of Operation Midland has been the subject of a thorough authoritative inquiry. In June, the Church announced an independent review of the case involving Bishop Bell. Four and a half months later, we still await the name of the review’s chairman and his or her terms of reference. There is no right reverend Prelate in the Chamber at the moment but I hope that these comments will be noted by the Lords Spiritual.

The authorities of Church as well as state must recognise that we need not just to halt but to reverse the trend that has eroded the presumption of innocence. We need another cultural shift, a decisive, morally responsible one that will stop the ruin of innocent lives and reputations. This amendment, I believe, would help us to achieve that shift.

“Rumpole of the Bailey” at Chichester Cathedral in 1988 on ‘Presumption of Innocence’

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BALLARD: It is a post only to community members of the Church of England. I doubt very much it would be offered to you , O, thou, of little faith.

RUMPOLE: I happen to have a good deal of faith.

BALLARD: Yes, in what precisely?

RUMPOLE: The health-giving properties of Claret. The presumption of innocence…

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RUMPOLE: Injustice is the same in a Law Court or a Cathedral.

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Rumpole: The motley crew of self-interested guardians of public morality.

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“Rumpole of the Bailey” – Series 5 – Episode 6 – ‘Rumpole and the Age of Miracles’ [1988]

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…. ‘ The process leading up to the settlement, the apology and the announcement was long, complex and carried out with all the sensitivity that a case of this nature demands.

Both legal and medical advice was taken with a number of lawyers involved in the core group including a very experienced practitioner in the field of civil claims relating to child abuse. The clear legal advice received was that on the balance of the probabilities the claimant was likely to succeed if her claim were heard in court…the presumption of innocence and  ‘ beyond reasonable doubt’ only apply in criminal cases.

It  would have been unjustifiable to spend the time and money on defending a claim the Church was likely to lose, and put the claimant through the ordeal of giving evidence…

The Bell Group has suggested that the Church can and should disclose further  sensitive information about Carol and her claim. The Church does not accept their legal analysis, which relies on an out-of-date version of a statute…The Church has a wider duty to Carol than that. She has already expressed hurt by the campaign to “ clear his name” as it implies she has not been believed.

We recognise that no procedure is ever perfect and that is why our guidelines provide for the commissioning of ‘ lessons learned’ reviews at the end of complex cases involving allegations of sexual abuse; we will soon be announcing further details of the review into the handling of the George Bell case…..

…the core base of all church safeguarding is the work done in our 12,500 parishes.. This is where safeguarding is worked out every day of the week—and all church policies and practices have to be designed for this. The local church is a place of welcome for all but the welcome has to be safe for all’.

From ‘ Duty of Care’ by the Bishop of Durham, The House: Parliament’s Magazine 28 October 2016