Lecture 2 Notes Civil and Criminal Law Distinguished

There is a fundamental division in the legal system between Civil and Criminal Law.
Civil law is sometimes referred to as PRIVATE law because it concerns relations between
individuals. The State provides a court system in which private disputes may be resolved.
Civil law concerns relations between individuals. Examples of Civil Law that we will be
looking at are contract law, sale and supply of goods, tort of negligence. A breach of these
areas of law normally leads to cash compensation (damages). The aim of damages is to
compensate as far as money can do this.
Criminal law is part of PUBLIC law because it governs behaviour from which society, i.e. the
public, needs to be protected. Criminal Law is imposed by the State. It is different from
contract and other branches of civil law. Its main aim is to protect society and to punish
criminals. Criminal law is now largely made by Acts of Parliament e.g. Theft Acts 1968 and
1978, Fraud Act 2006, Proceeds of Crime act 2002, Criminal Justice Act 1993 which
governs insider dealing and the Corporate Manslaughter & Corporate Homicide Act 2007. A
breach of criminal law is followed by punishment, for example there may be a fine or
imprisonment.
PRIVATE disputes between individuals may lead the state to consider that society needs to
be protected from certain behaviour, and then go on to criminalise it. Consequently, one
incident may lead to civil and criminal consequences.
Take for example: A road traffic accident. If the accident is caused by negligence, the
dispute is a PRIVATE civil action between the parties. If the accident is caused by driving
dangerously or without due care and attention, the behaviour puts the PUBLIC at risk, so is
criminal, and may also result in prosecution and punishment.
Public nuisance is both a crime and a tort. Any action that endangers health or property or
stops people exercising the rights that all citizens enjoy is a public nuisance. It is a criminal
offence, but an individual can sue in tort if they have suffered more than the public in
general.
There are differences between civil and criminal law. What are the main differences
between the 2? The main differences are the standard of proof, intention , the courts and
judicial personnel.
Judicial Personnel
In the Supreme Court there are the Justices of the Supreme Court. The Supreme Court is
the highest appellate court in GB and NI.
The Court of Appeal has 2 divisions – Civil and Criminal. Lord Justices of Appeal and Lady
Justices of Appeal sit in the Court of Appeal. Master of the Rolls is the President of the Civil
Division of the Court of Appeal. The Lord Chief Justice is the head of the Criminal Division
and is also the President of the Courts of England and Wales. The Court of Appeal is also
an appellate court.
High Court has 3 divisions – the Queens Bench Division, The Chancery Division and the
Family Division. Has High Court judges.
Crown Court has High Court judges who deal with serious criminal law cases. Circuit
judges sit in the Crown Court.
The County Court has circuit judges and district judges.
In the Magistrates’ Court there are District Judges. Also, lay magistrates who are also
known as Justices of the Peace.
The legal profession consists of barristers and solicitors. Traditionally, barristers are
advocates who appear before the higher courts, whilst Solicitors dealt with non contentious
work (wills, contracts), preparatory work, and appearances before the lower courts. These
roles have been blurred
Civil Courts and the track system
In Civil cases a track system is in place – the small claims track (claims less than £10,000),
fast track (Claims between £10,000 and £25,000) and multi-track (claims of more than
£25,000). The courts of first instance in civil matters are the County Court and High Court.
Costs are an important factor in civil cases- there are court fees, and the legal fees of
solicitors and barristers. The general rule is that the loser in a civil case pays the reasonable
costs of the opponent. This gives rise to satellite disputes. It may not be clear who won or
what reasonable costs are. There are part 36 CPR (Civil Procedure Rules) procedures which
allow offers of settlement to taken into account in deciding costs issues.
Differences between civil and criminal
The purpose behind criminal law is to ensure the preservation of order and punish offenders
whereas for civil law the purpose is to provide a remedy for a wrong that has been suffered.
One consequence of this is that a Defendant cannot just buy his or her way out of a criminal
offence. In criminal cases the defendant will be prosecuted by a prosecutor, usually the
Crown Prosecution Service, but also other regulatory Agencies.
On conviction the sentence court will impose punishment. Shortly, the court will consider the
crime and the convicted prisoner. There are a variety of sentences including imprisonment,
fines, probation etc.
In Civil law the person who has been wronged will make a claim as the claimant against the
defendant. The Court will most often give a monetary remedy but other remedies are
available. There are many other differences that you will come across in your own time when
reading through the resources.

Criminal Courts and category of offences

Summary only offences are minor offences and are dealt with in the magistrates’ courts.
The types of offences that fall under this category are driving without insurance.
Indictable offences are the more serious offences like murder. These can only be tried in the
Crown Court.
Either way offences are those which are either serious or not so serious but this is
dependent on each case and they are called either way offences because they can either be
treated in the magistrates court or the Crown court. Theft is one of the most common
examples of an either way offence. So shoplifting of a loaf of bread will be a summary
offence, while a van full of bread will be, probably, a
Burden and Standard of proof
In general, in a court of law if you assert something you have the burden of proving it. So the
Crown must prove someone is guilty of an offence. A claimant before a county court must
prove that the contract has been broken and he is entitled to damages.
The standard of proof to win a civil claim is: ‘on a balance of probabilities’ – i.e. most
probable version. Whereas the standard of proof for criminal matters is ‘beyond
reasonable doubt’‐i.e. sure. So, there is a difference when it comes to the burden of proof.
The standard of proof is higher when it comes to criminal cases. Can you explain the reason
behind this?
Criminal Law: What the prosecution must prove
In a criminal case the prosecution must prove beyond a reasonable doubt all the elements of
the crime that the defendant is charged with.
Most serious crimes can be analysed as having two elements, these are a guilty act (actus
reus) and a guilty state of mind or intent (mens rea). So for example, a loaf of bread is
missing will be the actus reus of theft, but the mens rea is the dishonest taking of the loaf.
Mens rea is indicated in offences by the use of words such as “knowingly”, “with intent to”,
“dishonestly” etc.
Crimes of strict liability
However, some crimes do not require proof of intention. These are categorised as crimes of
strict liability where mens rea is not required. Mens rea is not required in many commercial
and industrial settings. E.g. hazardous substances, defective products. Some estimates
argue it accounts for over 50% of statutory offences. Many are regulatory offences based on
strict liability (i.e. without fault) such as causing pollution or unlawfully selling goods, as in
PHARMACEUTICAL SOCIETY GB v STORKWAIN [1986] where a retail chemists’ business
issued prescribed drugs to a person using a forged prescription. It was convicted under s. 58
of the Medicines Act 1986 for dispensing prescribed drugs on invalid prescriptions. Even
though the chemists acted in good faith, they were convicted on the basis of their guilty act.
HARROW LBC v SHAH (1999). The defendants owned a newsagents where they sold
lottery tickets. Staff were warned not to sell lottery tickets to anyone under the age of 16, if
in doubt as to a customer's age then they should ask for identification.
A member of staff sold a lottery ticket to a 13 year old but did not ask for proof of age,
believed boy was 16. The defendant was charged with selling a lottery ticket to a person
under the age of 16 contrary to s 13(1)(c) of the National Lottery Act 1993. The Court held
the offence was one of strict liability, so no mens rea was required.
Crimes of strict liability are generally crimes of a regulatory nature. In some cases there is a
statutory defence which allows the defendant to show that he or she took all reasonable
measures to avoid breaching the law.
Corporate Criminal Liability -Controlling Mind
Criminal law acts against individuals and only individuals can be sent to prison. However,
companies (which are legal fictions) are major actors and agents in society, and it would be
a major gap in the if they were not subject to criminal law. Corporate legal persons
(companies and limited liability partnerships ‐ LLPs) can be prosecuted for any crimes
committed in carrying out their business. However, as corporations do not have a physical
existence, a human being who has the directing or ‘controlling mind’ must be identified.
In TESCO v NATTRASS [1972] HL where a supermarket branch manager was held not to
be a ‘controlling mind’ as he was not in the senior management of the
company. Consequently, Tesco escaped liability for a criminal offence. If the company had
been a sole trader, like its founder who sold fruit and vegetables in the streets, it could have
been convicted.
Proving a guilty mind (mens rea) used to create a special difficulty in convicting corporate
legal persons as a company does not have a physical existence. R v P&O European Ferries
(Dover) Ltd [1991]. One of its car ferries car sank off Zeebrugge (Belgium) A ship’s officer
had fallen asleep on duty and failed to close the ferry doors before it set sail and 190
passengers and crew were killed. The Lyme Bay canoeing case, where several students
were killed when the staff sent them (untrained) to sea in
In the cases mentioned above, P & O escaped criminal liability because no director could be
identified as personally responsible. In the Lyme Bay (Dorset) case – R v KITE and OLL Ltd
[1996] where a leisure company and its managing director were found guilty of corporate
manslaughter after killing several students by sending them (untrained) to canoe in rough
seas – the managing director and the company were both identified as responsible. The
director was convicted and sent to prison and company fined. The company was small
enough to enable the court to identify a ‘guilty mind’, and the managing director as the
controlling mind.
The prosecution had to prove that an individual was responsible, as the ‘controlling mind’. R
v OLL Ltd a [1996].( This would now be covered by the Corporate Manslaughter &
Corporate Homicide Act 2007).
Corporate Manslaughter & Corporate Homicide Act 2007 Until 2008 corporate killing or
manslaughter by gross negligence, was rarely effective. The background to the Act revealed
that in the last 45 years over 22,000 individuals have been killed at work or in ‘accidents’
related to business activities, e.g. in the PIPER ALPHA (July 1988) disaster 167 people were
killed after a massive explosion wrecked a North Sea oil platform. The difficulty in securing a
conviction was finding a ‘controlling mind’. From 6th April 2008 this has changed. This
statute only applies where an ‘accident’ results in a death! Now, companies and
organisations not individuals) can be found guilty of corporate manslaughter as a result of
serious management failures resulting in a gross breach of a duty of care. A company will be
criminally liable if there are serious failures in the management of health and safety which
results in a death. The penalties are an unlimited fine, a remedial order to remedy the
management failure leading to the death, and an order to the organisation to publicise its
conviction.
Companies are artificial legal persons. They have separate legal personality. There are
consequences that flow from this. Like natural persons they can incur liability in their own
name and as such they can be guilty of corporate manslaughter. Legislation like the
Corporate Manslaughter and Corporate Homicide Act 2007 can lead to a guilty verdict for a
company if the manner in which its activities are managed/organized causes death and is
such that it amounts to a gross breach of a duty to undertake reasonable care for the safety
of people.

Theft Act 1968

This major Act establishes the offences of Theft, Robbery (theft plus assault), burglary
(trespass with intent to commit a crime), handling stolen goods, blackmail and false
accounting.

Fraud Act 2006

This establishes three ways of committing an offence of fraud;
1. Fraud by false representation (dishonesty make a false representation intending to make
a gain for himself or another or to cause loss to another or expose another to risk of loss.)
2. Fraud by failing to disclose information ( to another person where they are under a legal
duty to disclose intending to make a gain for them‐ selves or cause loss to another or
expose another to risk of loss)
3.Fraud by abuse of position occupying a position in which they are expected to safeguard
the financial interests of another person or organisation and they dishonestly abuse that
position to make again for himself or cause loss to another or expose another to risk of loss.)
The maximum penalty is 10 years imprisonment and/or an unlimited fine.
The Computer Misuse Act 1990

This was legislation that was introduced to deal with computer hacking. (Criminal offences
which carry a sentence of imprisonment and or a fine)
Section 1 ‐ Unauthorised access to computer material
Section 2‐ Unauthorised access with intent to commit/facilitate further offences
Section 3‐ Unauthorised access with intent (or reckless) to impair, the operation of a
computer etc.
Section 3A‐ Making, supplying or obtaining articles for use in these offences
Section 3ZA‐ unauthorised acts causing, or creating risk of, serious damage.
“Cyber criminals seek to exploit human or security vulnerabilities in order to steal passwords,
data or money directly. The most common cyber threats include:

 Hacking ‐ including of social media and email passwords

 Phishing ‐ bogus emails asking for security information and personal details

 Malicious software – including ransomware through which criminals hijack files and hold
them to ransom

 Distributed denial of service (DDOS) attacks against websites – often accompanied by

extortion”.( National Crime Agency website).
2002 Proceeds of Crime Act (POCA)
This sets out offences of‐
Money laundering
Failure to report
Tipping off
The Act places obligations on professionals e.g. accountants to inform/report money
laundering.
The Bribery Act 2010
(summary from: http://www.legislation.gov.uk/ukpga/2010/23/notes/division/2)
The purpose of the Act is to reform the criminal law of bribery to provide for a new
consolidated scheme of bribery offences to cover bribery both in the United Kingdom (UK)
and abroad. It creates 4 offences;
Section 1, covers the offering, promising or giving of an advantage (broadly, offences of
bribing another person).
Section 2, deals with the requesting, agreeing to receive or accepting of an advantage
(broadly, offences of being bribed).
Section 6, bribery of a foreign public official. Extra‐territorial jurisdiction to prosecute bribery
committed abroad by persons ordinarily resident in the UK as well as UK nationals and UK
corporate bodies; a defence for conduct that would constitute a bribery offence where the
conduct was necessary for the proper exercise of any function of the intelligence services or
the armed forces engaged on active service.
Section 7, where a commercial organisation fails to prevent bribery and they obtain or retain
business or an advantage in the conduct of the business.
There is a maximum penalty of 10 years imprisonment or a fine for all the offences, except
the offence relating to commercial organisations, which will carry an unlimited fine.
The first prosecution under the Act: an administrative officer at Redbridge Magistrates’ Court
was held to have taken £500 by way of a bribe to ‘get rid of a speeding charge’ (2011). R v
Patel
Whistleblowing – A civil matter brought in an Employment Tribunal.
The Public Interest Disclosure Act1998 (PIDA) which was amended by the Enterprise and
Regulatory Reform Act 2013 has been embedded within The Employment Rights Act 1996
and allows an employee to raise a concern about specified practices which are in the public
interest.
Prior to the introduction of this Act workers were unlikely to whistle blow because they feared
reprisals and dismissal. Reports into major disasters such as the Zeebrugge ferry disaster
and Piper Alpha disaster, mentioned above, concluded that employees had known that
something was wrong but did not report it. So, PIDA was introduced to protect workers who
disclosed certain issues to their employers under an authorised procedure and, in certain
more limited circumstances, to others e.g. the press and police. The Act applies to workers
and employees.
In order to receive protection under the Act there has to be;
1 A qualifying disclosure And
2 it must be made in the public interest And
3 it must be made to the appropriate person.
What is a qualifying disclosure?
‐The worker must have a reasonable belief that the information disclosed tend to show one
or more of the following;
1.A criminal offence has been committed, is being committed or is likely to be committed.
2. A person has failed, is failing or is likely to fail with any legal obligation.
3.A miscarriage of justice has occurred, is occurring or is likely to occur
4.The health and safety of an individual has been or is likely to be endangered.
5.The environment has been or is likely to be damaged. (E.g. a factory pollutes a stream)
6.Information tending to show any of the above is being, or is likely to be concealed.
The wrongdoing may be committed by the employer or a co‐worker.
For who is an appropriate person see further section 43 of the Employment Rights Act
1996 as amended.
The worker or employee has the right not to be subjected to a detriment e.g. refused
promotion, lack of training, dismissal, or failure to renew a contract or subjected to unjustified
disciplinary action.
The consequence of this legislation has been that whistle‐blowers have revealed financial
scandals.
NB the legislation.gov.uk website is a useful website to access Acts of
Parliament.
Lecture 2 Civil and Criminal Law distinguished Tutorial Notes

Read through your course notes and the relevant parts of your textbook (see the
last slide of lecture 2 for the pages which you must read, you have a choice of 2
books) and complete the following 5 questions prior to the tutorial.

1. Explain the difference between the civil and criminal courts?

2. Explain the Civil court hierarchy. Explain the Criminal Court hierarchy.

3 What are the different outcomes in civil and criminal law?

4 What are the elements that must be proved for a perpetrator’s action to amount to
a criminal offence?

5. Why is there a difference in standard of proof between civil actions and criminal
trials?

6. How do courts define dishonesty?

6. What was the purpose of the Corporate Manslaughter & Corporate Homicide Act
2007?

7. What offences are created by the Bribery Act 2010?

Question to be completed in the tutorial

1. A look at the case of Donoghue v Stevenson [1932] AC 562

Think about this case and be ready to have a discussion around the facts and
decision in the case and the themes associated with the case.
2. You have just started working for a company called X Ltd as a trainee manager.
X Ltd is quite a large company and employs a significant number of people. The
manager you are working under, Jamie, has asked you to provide a summary of
the following two Acts of parliament as part of a training session for the
company’s employees:

a. the Corporate Manslaughter and Corporate Homicide Act 2007, and

b. the Bribery Act 2010.