Photo by Mateus Campos Felipe on Unsplash
What if criminal law lets down victims (and by extension their families)? Over the past year, several of my Blogs have looked at situations where the Crown Office and Procurator Fiscal Service have either not succeeded in prosecuting a suspect in a criminal case or have declined to do so.
In Scotland, the ability to bring a private prosecution is heavily restricted making it almost an impossible task to obtain the necessary authorisation from the High Court of Justiciary (via a Bill of Criminal Letters).
Victims (or their families) will often then have little choice but to turn civil law for some sort of resolution – usually an action for compensation.
I often emphasise to students that criminal and civil law have very different objectives: criminal law is used by the State to punish those individuals who would threaten the safety or security of the community by their actions; civil law, in this context, is primarily concerned with compensating the victims of a wrongful act.
Admittedly, certain types of conduct can be both criminal and civil in nature e.g. assault, dangerous driving, fraud and theft. This means that an individual could face the prospect of two trials. The outcome of each trial is independent of each other.
It is also worth remembering that criminal and civil law have different standards of proof. In a criminal trial, the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime; in civil law, the claimant (or pursuer) must show on the balance of probabilities that the respondent (defender) was responsible for the harm caused. The civil standard of proof is therefore a lower standard of proof.
So, it was of some interest that, in the last week, two stories were widely reported in the media which highlighted the difference between the two systems.
In the first story, it was established that John Downey, a former member of the Irish Republican Army, bore responsibility for the deaths of four members of the Household Cavalry (two British Army regiments) in July 1982. An IRA active service unit had planted a car bomb in London which had caused these fatalities. Downey was a member of that unit, but he had immunity from criminal prosecution under the terms of the Belfast (or Good Friday) Agreement 1998. The families of the victims had no alternative but to raise a civil legal action in the English High Court in order to establish that Downey was an active participant in the planning and execution of the bombing. The success of this action means that the families can now pursue Downey for damages (see Sarah Jane Young v John Anthony Downey [2019] EWHC 3508 (QB)).
It is important to stress that this judgement establishes Downey’s civil liability for the deaths of the four serving members of the British armed forces; it does not establish criminal liability.
A link to the judgement of the English High Court can be found below:
https://www.judiciary.uk/wp-content/uploads/2019/12/APPROVED-JUDGMENT-Young-v-Downey-18.12.19.pdf
The second story is from further afield and involves a female, Japanese journalist (Shiori Ito) who successfully sued a male TV journalist (Noriyuki Yamaguchi) who had raped her. This case broke many taboos in Japan because victims of rape tend not to publicise their ordeal. Again, the decision of Tokyo’s District Court establishes Yamaguchi’s civil liability for rape – not criminal liability.
In Scotland, of course, we have had two recent civil actions whereby victims of rape have successfully pursued their attackers for the right to receive compensation. It might not be the ideal solution, but in the absence of any action on the part of the State prosecution authorities, it may be the only recourse to justice that the victims have.
Links to media articles about the two cases can be found below:
Journalist wins Japan civil rape case
Related Blog Articles:
The public interest?
https://seancrossansscotslaw.com/2019/11/12/the-public-interest/
The burden of proof
https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/
Private prosecutions
https://seancrossansscotslaw.com/2019/05/29/private-prosecutions/
Copyright Seán J Crossan, 23 December 2019
Seán Crossan's Scots Law 