EWJ 60 April 2025 web - Journal - Page 90
Exploring the Overlaps
Between Civil and Criminal Law
In this article, Aimee Stokes explores how civil and criminal law, often
viewed as distinct entities with their own procedures, objectives, and outcomes,
intersect in several areas, creating a complex interplay that can significantly
impact the parties involved.
immediate and effective protection while the criminal
justice system addresses the perpetrator's conduct.
Concurrent proceedings: prioritisation and burden
of proof
When civil and criminal proceedings run alongside
each other, the criminal case will typically take precedence. This is primarily due to the higher burden of
proof required in criminal cases—"beyond reasonable
doubt" or so that the jury are sure—compared to “on
the balance of probabilities" in civil cases. This key difference means that the outcome of a criminal matter
can significantly influence the civil proceedings as the
evidence is deemed to have been tested to a higher
standard of proof.
Fraud and theft offences are another common
example. These offences can significantly impact an
individual or organisation’s financial position, thus the
focus is generally on asset recovery. Proceedings can
be brought through civil litigation to recover the losses
suffered from fraudulent activity. Similarly, should a
criminal prosecution be brought, the prosecution
can seek to recover the monies obtained by deceit
pursuant to the Proceeds of Crime Act 2002.
New criminal offence of failure to prevent fraud
An interesting new development in this intersection is
the introduction of the criminal offence of failure to
prevent fraud pursuant to the Economic Crime and
Corporate Transparency Act 2023. This offence will
come into effect on 1 September 2025.
If an individual or organisation is convicted in a criminal court, the conviction can be cross-admitted to civil
proceedings as evidence that the alleged act was committed. Likewise, it will be an important factor to note
in civil proceedings, if an individual or organisation
has been acquitted, albeit it by no means prevents the
civil claim succeeding, given the lower standard of
proof. In summary, the same alleged act can have different outcomes depending on the proceedings in
which the evidence is tested.
This new offence expands the scope of corporate
criminal liability far beyond that which previously existed. It significantly overlaps with activities which
have, until now, been subject to civil proceedings.
We're, therefore, likely to see a rise in parallel criminal
and civil proceedings against organisations.
Examples of overlap
There are many circumstances where we may see the
same alleged act being subject to both criminal and
civil proceedings.
Given the various time restrictions which apply to civil
claims, I anticipate the initial prosecutions brought
under the new offence will be private. This is on the
assumption that prosecuting agencies, such as the
Crown Prosecution Service, will be slow to adopt the
new legislation.
A road traffic accident is perhaps the most common
example. There is a strong potential for a civil claim to
reflect any personal injury or property damage caused
as the result of a collision. There's also the potential
for a criminal investigation if the driving was thought
to have deviated from that of a careful and competent
driver.
My colleague, Claire O’Reilly, has recently written
about what this development means for organisations.
You can view the article here.
https://www.mills-reeve.com/publications/new-uk-government-guidance-on-failure-to-prevent-fraud-offence/
Harassment, offences against the person and sexual
offences can also involve both civil and criminal proceedings. The overlaps here often occur in the form of
addressing the risk of potential future harm. A victim
of these types of offences may obtain a non-molestation order in the civil or family court to prevent further abuse, while criminal charges are pursued
simultaneously. This is particularly common where
the offence has occurred in a domestic setting. Regardless of whether a defendant is then convicted in
the criminal proceedings, the court can also seek to
impose a restraining order which aims to provide additional protection for the victim. This overlap and
dual approach aims to ensure the victim receives
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Why understanding the interaction is important
Understanding the interaction between civil and criminal law is crucial for several reasons. It helps in formulating a comprehensive legal strategy, as a criminal
conviction can significantly bolster a civil case by providing strong evidence of wrongdoing. Awareness of
both types of proceedings ensures that individuals and
organisations can better protect their rights, such as
victims of harassment seeking immediate protection
through civil orders while criminal charges are pursued. This knowledge also leads to more efficient use
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