Burden of proof cannot shift during trial (High Court)

The court has dismissed an appeal by a dentist against the General Dental Council's (GDC's) decision to strike him off the register on the grounds of dishonest conduct. The GDC had been required to establish the allegations on the balance of probabilities. The appellant argued that the GDC had erred in applying the burden of proof.

Turner J's judgment confirms that the persuasive burden of proof is fixed at the beginning of the trial by the state of the pleadings. The burden of proof does not shift during the course of the trial "as a result of the ebb and tide of evidential fortunes in the hearing". Further, the burden of proof itself has no "weight". The proper application of the standard of proof, balancing the probabilities, would be automatically vitiated if the burden of proof weighted the scales in advance.

The appellant relied on Sharma v General Medical Council [2014] EWHC 1471, in which it was noted that, when assessing the probabilities, the court would consider that the more serious the allegation, the less likely it was to be true, and the stronger the evidence required. Fraud was usually less likely than negligence. Turner J emphasised that the extent to which it may be necessary to rely on this principle would depend on the facts of the particular case.

In this case, the GDC had taken into account the appellant's positive good character, but it found that his acts of dishonesty had been blatant.

The judgment provides a reminder of the application of the civil standard of proof.

Case: Pope v The General Dental Council [2015] EWHC 278 (Admin) (12 February 2015) (Bailii).