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Civil and criminal
proceedings
It has been mentioned that many crimes are also civil wrongs,
usually torts, examples of which are assault and battery, and
theft. In such circumstances both civil and criminal proceedings
can usually be taken, although there are exceptions. For example,
the Offences Against the Person Act 1861 provides that where
a person has been prosecuted criminally for assault and battery
in a court of summary jurisdiction (a magistrates’ court),
then, whether he has been acquitted or convicted, he cannot
be sued in civil proceedings for the same incident.
Either the civil or the criminal proceedings may be taken first
or, in theory, both sets of proceedings may be begun concurrently.
In practice, so great are the delays in preparing civil cases
for trial and awaiting a date for hearing that almost invariably
the criminal proceedings are heard first. Also in practice,
it is comparatively rare for a convicted person to be sued,
as it is most unlikely that any damages awarded against him
will be paid – few criminals are men of wealth, and even
if the criminal is wealthy, it may be impossible to discover
the whereabouts of his wealth.
Where both civil and criminal proceedings are taken, the findings
in criminal proceedings can be used as evidence in the civil
court, but not vice versa. The reason for this is that a much
higher standard of proof is required in criminal than in civil
proceedings; in criminal proceedings guilt must be established
beyond any reasonable doubt, whereas in civil proceedings a
plaintiff need prove his case only on a balance of probabilities.
Therefore, if evidence has satisfied a criminal court it will
satisfy a civil court also, but the converse does not apply.
Thus if A is prosecuted for and found guilty of careless driving,
he may also be sued in tort for negligence by B, who was injured
as a result of his careless driving, and his conviction will
be evidence against him in the action for negligence. If, on
the other hand, the action in negligence preceded the criminal
proceedings, a finding of negligence would not be admissible
evidence in subsequent criminal proceedings. It should be noted
also that an acquittal in criminal proceedings is not evidence
of innocence for the purpose of subsequent civil proceedings.
In some circumstances, civil and criminal proceedings become
merged, because certain statutes provide for civil remedies
to be given in what are substantially criminal proceedings.
The most important statute in this respect is the Powers of
Criminal Courts Act 1973.
Under the Act a court by which a person is convicted of an offence
may make a compensation order against him requiring him to pay
compensation for any personal injury, loss or damage which may
have resulted from his offence. In determining whether to make
a compensation order the court must have regard to the means
of the offender, and no order may be made if the result might
be to induce him to commit another crime in order to pay the
compensation awarded against him. Orders made by magistrates’
courts are generally subject to a limit of £1000, but
there is no limit to the amount of an order which may be made
by the Crown Court. Compensation may not be made by the criminal
courts to the dependants of a person killed as a result of a
crime, nor for loss or damage due to an accident arising out
of the presence of a motor vehicle on a road.
If a compensation order has been made, the person who has suffered
the injury, damage, or loss may nevertheless bring a civil action
over the same subject. If he does so the civil court will assess
the full damages in the normal manner, but the aggrieved person
may receive only the amount by which the damages as so assessed
exceed the amount of the compensation order; in other words,
the amount which he receives in total must not exceed the amount
assessed by the civil court.
In cases of theft, the stolen goods, or some of them, are often
recovered, and the Theft Act 1968 provides that where a person
is convicted of theft, the court may make a restitution order
under which the goods are returned to their owner.
The Crown Court may also make an order of criminal bankruptcy
against a person who has been convicted. Such an order may be
made where a person has been found guilty of offences which
have caused loss or damage of more than £15,000. Where
such an order is made, the Director of Public Prosecutions in
his capacity of Official Petitioner decides whether it would
be in the public interest for him to present a petition for
bankruptcy. If he does, the bankruptcy proceedings will follow
the normal course.
It is relevant here to mention the work of the Criminal Injuries
Compensation Board, which was established in 1964. Where, as
happens all too frequently, a criminal uses violence in the
course of committing crime, his victim may suffer personal injury,
sometimes severe. In such cases, it may be impossible to obtain
redress against the criminal himself, either because he has
not the means to satisfy any award which might be made against
him, or in many cases because he cannot be traced.
The Board is entitled to award ex gratia payments from public
funds to such victims provided that the victim, or his representatives
if he has been killed, make application promptly. The injury
must be sufficiently severe as to involve at least three week’s
loss of earnings.
The Board is not concerned with injuries caused by motor vehicles
unless they are used as weapons of offence. The reason for this
is that, however dangerously or recklessly a car is used, the
insurers of the vehicle will pay any claim in respect of injury
to a third party, or the claim will be met by the Motor Insurers’
Bureau if no insurance is in force.
There are a number of cases where, although crimes and torts
do not strictly coincide, criminal and civil proceedings may
arise out of the same incident, although the bases of the actions
are different. For example, dangerous driving is a crime under
the Road Traffic Act 1972, but not a tort; however, the conduct
which constitutes dangerous driving may also amount to the common
law tort of negligence. Thus, a driver may be prosecuted under
the Act for dangerous driving, and on the same fact he may be
sued in tort for negligence by, say, a person who has been injured
as a result of his dangerous driving. In such a case the proceedings
are distinct, the criminal prosecution being for a statutory
offence and the civil action being based on a common law tort,
and the civil proceedings may well succeed although the prosecution
for dangerous driving fails. (In practice, if the prosecution
for dangerous driving were brought first and the driver were
convicted, it is highly unlikely that the driver would attempt
to defend himself against an action of negligence, as he would
almost certainly fail. The matter would probably be settled
out of court, although there could be litigation over the amount
to be paid, known as quantum, as distinct from liability.)
If a duty is imposed on one person by statute and thus a right
is conferred upon someone else, the question arises whether
the right is enforceable by civil action. The answer depends
on a consideration of the Act as a whole. If the Act expressly
or by clear implication provides that the right can be enforced
by civil action, no difficulty arises. Often, however, an Act
is silent on this point, and it is for the courts to determine
the intention of Parliament from the wording of the Act.
In the past the courts have expressed conflicting views. According
to one view a person who has suffered loss or injury as a result
of breach of statutory duty prima facie has a right to recover
damages unless the wording of the Act clearly indicates that
no such right was intended to be given. The other view is that
where a statute creates an obligation, and enforces its performance
in a specified manner, as by a fine, performance cannot in general
be enforced in any other manner.
At the present day the courts tend not to take either of these
extreme views, and generally adopt the following guidelines:
(a) If a statute is passed for the benefit of an ascertainable
class of persons, such as factory workers, it is assumed that
members of that class have a civil right of action. On the other
hand, if statutes are passed for the benefit of the public as
a whole, such as the Road Traffic Acts, they do not give rise
to civil rights of action.
(b) A person who is not one of the class for whose benefit the
legislation has been passed cannot derive any advantage form
it. If, for example, a fireman is injured while fighting a fire
at a factory, he cannot bring an action for breach of a statutory
duty which the factory owner owed to his employees.
(c) The fact that a statute provides for a penalty, such as
a fine, does not mean that civil proceedings are necessarily
precluded.
(d) Where before the statute a person had the right to bring
a civil action at common law, there is no presumption that the
common law right is extinguished by the statute. In many statutes
this is made clear by a wording such as ‘nothing is this
Act shall be taken to prejudice any liability or remedy to which
a person guilty of an offence thereunder may be subject in civil
proceedings’. However, such a wording does not actually
create a civil liability.
(e) A civil remedy may be refused on the grounds that existing
common law remedies are adequate, by this in by no means always
the case. Nor does the converse necessarily apply: the fact
that no common law remedy exists does not mean that one is created
by any particular statute.
It must be admitted that these guidelines are vague, sometimes
contradictory, and in general unsatisfactory: the truth is that
the courts often purport to attempt to find the intention of
Parliament on points to which in fact Parliament gave no consideration
at all. The result is that to understand the law on this matter
a very large number of cases have to be considered and the principles
laid down in them mastered.
Where a person can bring an action for breach of statutory duty
rather than at common law, he has an advantage in that he does
not have to prove fault. He merely has to show that there had
been a breach, and that injury or damage has resulted from the
breach.
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