9. In each case the Commissioner brings before us
we review her procedures and evidence before reaching our conclusions.
We have done so with particular care in the present case in view
of the trenchant criticisms made by both Members.
10. We were not assisted by the submissions of Dr
Reid`s legal adviser, Mr James Goudie QC, which seemed to us to
miss the point and misunderstand the process. Dr Reid drew our
attention to Mr Goudie`s description of the Commissioner`s report
as "the more than shoddy outcome of an investigation that
has been mishandled throughout"
and "a series of attempts by the Commissioner to smear Dr
Reid", and said,
"I do not believe someone in his position uses expressions
like that lightly at all" (Q277). We disagree. We reject
this unwarranted attack on the integrity of the Commissioner.
11. We have considered the submissions from Dr Reid
and Mr Maxton and the Commissioner`s response.
On that evidence we are satisfied that the Commissioner`s inquiry
was properly conducted and met appropriate standards of care,
fairness and competence.
12. We must also consider the proposition, which
was put to us by both Members, that the Commissioner had acted
wrongly in accepting the complaint for investigation on the basis
of the evidence tendered by the complainant. They drew our attention
to paragraph 67 of The Code of Conduct and Guide to the Rules
relating to the Conduct of Members ("the Code"),
which reads as follows:
Both the Commissioner
and the Committee on Standards and Privileges will be guided by
the view of the former Select Committee on Members' Interests
that "it is not sufficient to make an unsubstantiated allegation
and expect the Committee to assemble the supporting evidence",
and that it "would not normally regard a complaint founded
upon no more than a newspaper story or television report as a
The Commissioner will not entertain anonymous complaints.
13. The Commissioner`s response was as follows:
Mr Nelson did not make
unsubstantiated allegations. He had, through his own investigative
efforts, assembled information which led me to believe that if
I approached certain witnesses they would give truthful evidence
on the issues he had raised with me.
... Mr Nelson`s complaint was not a vague allegation submitted
in a vacuum; his letter was detailed and set out the supporting
material. He had, as a result of his own investigations, assembled
information in the form of notes of conversations and tapes which
indicated that people with direct knowledge of the events in question
could provide relevant and truthful information. Mr Maxton is
correct in stating that I had not, when deciding to take up the
complaints, either heard the tapes made by Mr Nelson or, at that
stage, obtained a copy of his notes. However, Mr Nelson had read
his notes to me in full, so I was aware of their content and in
addition, he had shown me the notes (with names removed), but
without handing them over. Shortly afterwards he played the tapes
to me. Equally importantly he had also, in his letter of 26 January
2000, supplied me with the names of those he believed were likely
to provide me with accurate information.
14. We consider that the Commissioner interpreted
the requirements of paragraph 67 of the Code correctly. This complaint
was not founded upon "no more than a newspaper story".
The facts that the complainant is a journalist, and that a newspaper
story played a part in the complaint, do not disqualify the complaint
from being taken up if the normal conditions are met.
15. Paragraph 69 of the Code requires that sufficient
evidence should be tendered in support of the complaint to justify
the Commissioner`s taking the matter further. The Commissioner
has discretion to decide whether or not the evidence is sufficient
for this purpose, and rightly so, for that ensures that that judgement
is reached independently. In the light of the information provided
by the Commissioner,
we consider that she exercised her discretion correctly in starting
16. The Commissioner said in her report that she
had reached her conclusions on the balance of probabilities. She
has explained to us that this was not a low standard of proof.
We have considered what was the appropriate standard of proof
for us to apply in a case where the allegations went beyond negligence.
17. In reaching our conclusions on the standard of
proof we have taken account of a statement made by Sir Gordon
Downey about the approach he had adopted when inquiring into the
allegations against Mr Neil Hamilton:
Since this was not a court
action I deliberately avoided judicial concepts of standards of
proof. In any case, "beyond reasonable doubt" was of
doubtful relevance given that this was not a case involving criminal
charges or criminal sanctions. Indeed, the substance of the case
stemmed from the abandoned civil libel action where the standard
of proof would have been "balance of probabilities".
In practice my approach was more stringent than this and I assured
Mr Hamilton at an early stage that I would require higher standards
of proof for the more serious allegations.
18. We were also assisted by some remarks of (the
then) Lord Justice Denning:
... In civil cases the
case may be proved by a preponderance of probability, but there
may be degrees of probability within that standard. The degree
depends on the subject-matter. A civil court, when considering
a charge of fraud, will naturally require for itself a higher
degree of probability than that which it would require when asking
if negligence is established. It does not adopt so high a degree
as a criminal court, even when it is considering a charge of a
criminal nature; but still it does require a degree of probability
which is commensurate with the occasion.
19. Lord Scarman, who quoted Lord Denning with approval
in the House of Lords, said:
The flexibility of the
civil standard of proof suffices to ensure that the court will
require the high degree of probability which is appropriate to
what is at stake.
We also note that the Judicial Committee of the Privy
Council has called for a high standard of proof in cases of alleged
professional misconduct, as it could not envisage professional
men condemning each other on a mere balance of probabilities.
20. We would not expect the complaint to be established
beyond reasonable doubt, since it does not involve criminal charges
or criminal sanctions. The courts have interpreted the concept
of balance of probabilities to require a higher standard of proof
in serious cases. A case such as this has serious implications
for holders of public office. Accordingly we have concluded that
we should need to be persuaded that these allegations were significantly
more likely to be true than not to be true before we could
properly uphold them. It is against that test that we have assessed
the evidence in support of the complaint. We do not therefore
need to consider whether the simple test of a balance of probabilities
has been met.
6 Appendix 1, para. 285. Back
1, para. 255. Back
1, para. 144. Back
written information referred to was -
(i) the original SLP budget documents;
(ii) details of the bonuses paid to the three researchers;
(iii) the contract letters sent to Mr Kevin Reid and Mr Winslow;
(iv) the previous employment history with the Party of the three
(See Appendix 1, Annexes 204 and 206.) Back
1, Annex 207. Back
2, section 2, para. 95. Back
5, para. 47. Back
Committee on Members' Interests, First Report, Session 1992-93,
HC 383, paragraph 4. Back
4, Section III, para. 12 (16-20). Back
4, Section VII, para. 15. Back
1, paras. 2 and 6; Appendix 6. Back
Report, Session 1997-98, HC 261, p. xi. Back
v. Baker , quoted by
Lord Scarman in R v. Home Secretary, ex parte Khawaja . Back
v. Advocates Committee . Back