Andrew Drozdowski AS Law Thanet College Broadstairs Kent 17 September 2002

Contrasts between Civil and Criminal Law

A commentary on "A Singular Victory" Guardian 11 September 1977

In the civil law courts there exist procedures, benefits and limitations that differ from those found within the Criminal courts. These differences make it well worth taking advice and making careful consideration before launching into a private civil action against another party even for the very best of intentions. This is important, based on the differences even if it is to achieve the benefits relating to the rectification of sometimes severe personal loss or the repair of damages suffered by the actions of another individual company or group.

The September 11th 1997 issue of the Guardian related a case in sufficient detail to highlight the contrast between the civil courts and those of the criminal court system. The article was entitled "A Singular Victory" and gave details regarding the case whereby a mother of five after having been sexually assaulted and raped by her husband was refused the opportunity of having the Crown Prosecution Service (CPS) take her perpetrator to a criminal court to face a prosecution relating to her ordeal. Their reason for refusing to pursue a case even though her husband had admitted the offence to the police was that there was "very little likelihood" of the man reoffending.

From the outset of the article we can see that the CPS are not concerned with the individual victim but rather than to society at large and this is highlighted in criteria that is considered by the CPS prior to any prosecution of an offender, the criteria being whether a criminal prosecution serves the public interest. So from the outset of the article "A Singular Victory" we see that the criminal courts are there for prosecution on behalf of the Crown and not on behalf of the individual as is the case with civil courts.

In contrast to the criminal procedure, and highlighted in the same Guardian article, matters have been resolved between parties in a rape case where two individuals brought civil actions against a Christopher Meah and were awarded damages of £6750 and 10250. A contrast here is that personal damages were the object of the matters rather than one involving punishment via the criminal courts. The Meah case was, though, brought after a criminal prosecution had convicted him prior to the success of the civil cases and did not involve marital rape.

The mother of five mentioned in the Guardian article did pursue a civil action and won. This also became the first recorded case of a successful civil action for marital rape. The result in this matter could highlight other contrasts to consider when deciding the value of pursuing a civil action. The mother of five was obviously aware of her husband’s finances and was awarded £14000 against him for her ordeal. If, however, a potential defendant in a civil matter is not in a financial position to pay such a sum, then it seems hardly worth the effort and court time of such an action. This is also commented on in the article of September 11 1997 of the Guardian. This is a factor that is not considered in a criminal matter as whether the offender has collateral or not makes no difference to the public interest.

Regarding the above, the famous OJ Simpson case is mentioned where another contrast between civil and criminal matters are concerned and that is the burden of proof. Where, in a criminal prosecution, the burden of proof lies squarely with the prosecution authorities and evidence ascertained by the police, the degree of proof has to be beyond reasonable doubt to succeed in a criminal prosecution and to reach a guilty verdict. This compares to the civil courts where the evidence is judged on the balance of probabilities which is easier to prove. This accounts for OJ Simpson being able to evade conviction in the criminal proceedings and yet not being able to defend virtually the same matter in a civil action made against him by the relatives of the deceased.

The funding of any civil matter, not being supported by the state, is also to be considered by an individual, as this can be expensive with often little or no return. Legal aid is allowed in civil matters and yet most people do not qualify for assistance. One similarity is that of anonymity of the parties involved in a civil rape matter as is the case with a complainant in a criminal prosecution for rape.

In further contrast to the public interest criteria in a criminal matter, in a civil case the individual victim has a unique opportunity to put her case in a civil matter. The guardian article addresses this difference in acknowledging that victims come away from the criminal courts feeling that their case was not properly put to the court.

Opinion

In reviewing the article of 11 September 1997 it seems that the differences between the civil and criminal procedure have to exist for various reasons and yet these contrasts do not always seem to be fully exploited by the cases mentioned. The wife in the Bradford case received an element of sympathy in the article regarding the decision of the CPS not to prosecute. It seems more than unfair in that there was a rather vague reason given by the CPS "that he was unlikely to reoffend". Of course no details are offered as to this individual case and it could be taken that they felt that he would either not be in a close relationship again and therefore not rape his wife again or hat he would not rape the same wife again. It seems altogether arbitrary that an individual in the CPS, after a matter has been brought by a wife to the police and confessed to by a husband, should deem it unnecessary to prosecute on such a flimsy basis.

Further to this, it seems that in the Meah case, the two rape victims were given a good deal of assistance and encouragement by the prior guilty verdicts. This might well have assisted the case in the matter of the Bradford wife had the CPS followed through. As is mentioned in the Guardian, there is often a degree of physical abuse in a marital rape case, which might well lead to an easy conviction by the Crown. It seems that in the Bradford matter the wife had gone to all the trouble and stress in reporting the offence and the police had assisted her spending their time and resources to simply be told by the CPS that they would not prosecute.

Regarding the overall practicality of marital rape being actionable in the criminal courts, it seems clear that had this not been made criminal sooner or later. Husbands, estranged husbands or those separated for years could rape their former spouses at any time without any fear of prosecution and it seemed that this was open to abuse leaving the former partners in a precarious situation legally, to say the least. It seems also for the better that civil matters are swaying towards the successful prosecution in civil courts at least against those who formerly agreed to love and honour their wives. However, that being said, there is always the possibility that "consent" to intercourse could be taken for granted by a husband understandably and at the same time be a technical rape if it was not acquired on every occasion. This does rather lead to a potential of a wife claiming rape in a frivolous manner and yet this seemed to be the way the Bradford wife was treated.

My conclusion is that there are now statutes in place to prevent the abuse of marriage and yet also provisions for the CPS to use their decision -making criteria for criminal prosecution in a way that may inhibit abuses of these provisions by either partner in a marriage.