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CRIMINAL CONVICTIONS AND THE CIVIL COURTS
Abstract
How should a civil court use a relevant conviction? Some have argued that a civil claim contesting the factual basis of a conviction should be struck out as an abuse of process unless new evidence is presented which “entirely changes the aspect of the case”. Such a high evidential requirement is wrong in principle, inconsistent with section 11 of the Civil Evidence Act 1968, and unjust in practice. The law should recognise that there are two distinct types of cases. The first is concerned with truly abusive claims, where the later civil suit is brought for an improper purpose or otherwise similarly abusive; there a high level of new evidence should be required. The second deals with challenges to convictions which are in principle permissible; there, if on the facts they have no real prospect of success, an application for summary judgment by the other party is the solution.
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This paper traces a key example of the overlap between tort and crime and explains the impact of how disjointed English legal thinking has been. For about 400 years English civil courts have accepted some form of pre-eminence of the criminal law where civil and serious criminal liability co-exist. This has often been described as the rule that “a trespass merges in a felony” though a more neutral term would be a “timing rule”. The development of the timing rules casts light on how English legal reasoning has approached the relationship between the victim and the state, the procedural context of substantive rules and the impact rules in one area of law can have elsewhere.
Tort law and criminal law are closely bound together but their relationship rarely receives sustained and rigorous scrutiny. This is the first significant project in England and Wales to address that shortcoming. Building on growing interest amongst both academics and practitioners in the relationship between tort and crime, it draws together leading experts to chart the field and explore key points of interest. It uses a range of perspectives from legal theory, doctrine, legal history and comparative law to address some of the most important and interesting links between tort and crime. Examples include how the illegality defence operates to avoid stultification of the law, the difference between criminal and civil causation, how the Motor Insurers’ Bureau not only insures but acts to enforce laws and alter behaviour, and why civil law only very rarely restores specific property but the criminal law does it daily.
This paper considers the immunity in tort enjoyed by superior court judges in England and Wales. It suggests, first, that the current level of immunity is set too high; secondly, that the reasons traditionally given for this level of immunity are overwhelmingly unconvincing and that, therefore, thirdly, a lesser degree of immunity (which allows judges to be exposed to potential liability under a modified version of the tort of misfeasance in a public office) would be the preferable way to proceed.
The position of applicants for judicial review has been drastically ameliorated by the new Order 53. It has removed all those disadvantages, particularly in relation to discovery, that were manifestly unfair to them and had, in many cases, made applications for prerogative orders an inadequate remedy if justice was to be done … Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.
( per Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. 237 at 285)
Convicted felons at the Old Bailey and on assize in nineteenth-century England had no right of appeal. They had either to submit to their fate or, if they had the means, petition the Crown for a pardon. The legal avenues for redress were limited. A writ of error would lie to a superior court for legal errors that appeared on the face of the record but by the nineteenth century this was seldom used. More significantly, it was open for the trial judge to reserve questions of law for the informal and private consideration of all the common law judges. In their illuminating studies of this practice in the eighteenth and early nineteenth centuries, James Oldham and Randall McGowen elucidate the ways in which the judiciary used reserved cases to develop legal doctrine and to shape the operation of criminal justice. The trend toward increased formalization of procedure that they identify, culminated in 1848, when Parliament created the Court for Crown Cases Reserved (CCCR). The new court adopted the existing method of reserving cases, but was a court of record that sat and gave judgment in public. It became the highest judicial forum for the determination of questions of criminal law until 1908, when it was superseded by the Court of Criminal Appeal.