Practical observations about the burden and standard of proof – post Kuzmin
The regulator always bears the burden of proving allegations of misconduct or deficient professional performance. In conviction cases the certificate of conviction is usually deemed conclusive proof of the conviction.
It is now well settled that the standard of proof which applies in fitness to practise cases is not the criminal standard of proof – beyond reasonable doubt – but the lower civil standard of proof. The Panel will find an allegation proved if, having considered all of the evidence, they are of the opinion that the alleged facts are more likely to be true than not true. Thus, if the Panel receive credible evidence that event X occurred, and receive no evidence to support a contrary position, they will be entitled to find the allegation proved. As the allegations are formulated after the regulator has gathered their evidence, the expectation is that the regulator has already determined that it is in a position to adduce sufficient evidence to prove all of the allegations, assuming the Panel accept the correctness of the regulator’s evidence.
Many of the most serious allegations which are dealt with at fitness to practise panels require determination of the Registrant’s state of mind at the relevant time. This includes allegations of dishonesty and sexual motivation. A particular set of facts may be open to an innocent explanation or a culpable one – was an error on a time sheet deliberate or an innocent mistake? In many instances the Registrant will be best placed to explain. It is a matter for the Registrant whether they give evidence to the Panel. However, the Registrant needs to be aware that if they do not give evidence, the Panel may draw an adverse inference. In other words, the Panel may say – “If there were an innocent explanation the Registrant would have provided it. In the absence of such an explanation it is more likely than not that there was an improper motive”.
It will not always be permissible for a Panel to draw an adverse inference from the fact that a Registrant did not give evidence. The Panel would need to be satisfied that it is fair to do so in the circumstances. Clearly the decision whether to give evidence or not is an important one and must be given careful consideration.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.