Where crime and the civil law intersect: the case of DC v DG and DR

Today, Lord Armstrong sitting in the Court of Session in Edinburgh (and this is an important point to which I shall return shortly) has issued a judgment which has attracted much publicity over the course of today.  Lord Armstrong ordered that the Defenders, two former Scotland international football players, should pay, on a joint and several basis, the Pursuer £100,000 in compensation.  This follows an allegation by the Pursuer that the Defenders raped her in January 2011.

This is an important case, but it is necessary that some preliminary matters are covered.  The first is that although this case relates to an allegation that an extremely serious criminal offence has been committed, the Court of Session deals entirely with civil cases.  What we have here is a claim for damages raised by the Pursuer.  The Pursuer had made a complaint to the Police which initially proceeded to prosecution, but for some reason the prosecution was discontinued.  Lord Armstrong’s judgment does not go into detail on this (and the reasons why the criminal case was dropped are irrelevant to the task his Lordship was faced with).  The most likely explanation for the prosecution not proceeding would be that the Crown no longer believed that it had sufficient evidence to provide a realistic prospect of success in proving its case against the accused footballers.

Someone not familiar with the law may well reach the conclusion that such a decision by the Crown must be wrong in view of Lord Armstrong’s judgment; however, it does not necessarily follow that a finding of liability in a damages action means that the Defenders would be convicted in a criminal court.  In both the civil and criminal courts there is the burden of proof and the standard of proof.   The burden of proof generally lies with the party who bring the case (there are some exceptions to this, but they’re not relevant here and it may only confuse matters to explain them).  In a case brought in the civil courts, such as the Court of Session, the burden of proof generally lies with the Pursuer as the person brining the case.  In a criminal case the burden of proof rests with the Prosecution. That tells us who needs to prove their case, but how do they do that?  That is where the standard of proof comes in.

There are two standards of proof.  Where a case is brought in the civil courts, the pursuer needs to prove their case on the balance of probabilities.  Essentially this means that the judge deciding the case needs to be satisfied that the Pursuer’s version of events is more probable than not.  The judge deciding the case doesn’t even need to consider that the Defender’s version of events is more likely than the Pursuers.  If the Pursuer doesn’t prove their case on the balance of probabilities then they fail, even if the judge things the Defender’s case is a load of rubbish.  This contrasts with the situation in a criminal court where the Crown has to prove its case beyond reasonable doubt.  This is a substantially higher test to pass (and rightly so as the consequences of a criminal conviction are much graver).  It is not enough that the jury think that it is more probable that the complainer is the victim of the crime alleged and that the accused committed that crime than not; if they have even the smallest amount of doubt that has a reasonable basis, then the Accused is entitled to the benefit of that doubt and must be acquitted.

The effect of this is that it is much easier to prove something in a civil court than in a criminal court.  That means that although Lord Armstrong was satisfied that it was more likely than not that the events averred by the Pursuer occurred, it does not follow that if the same evidence were to be put before a jury that the jury would convict the accused.

Lord Armstrong’s decision is lengthy; it runs to almost 350 paragraphs over some 42 pages.  As would be expected with any civil judgment it sets out the case for the Purser and Defenders with reference to the evidence of the witnesses.  It then analyses the evidence and reaches a decision.  However, Lord Armstrong only had to be satisfied that the Pursuer had proved her case on the balance of probabilities.

What does this case mean?

For the Defenders this is not a criminal conviction; it will not appear on their criminal record.  Unlike if they were convicted in a criminal court they do not need to declare the finding in any future employment application; they cannot be required to sign the sex offenders register nor could they have faced imprisonment.  So far as the criminal law is concerned they remain innocent of the crime of rape.  It is important that this finding by the Court of Session (while in all probability comforting to the Pursuer) is not seen in the same light as if it were a finding of guilt in the High Court.  The Defenders, between them, need to pay the Pursuer (subject to any appeal) the sum of £100,000 – this is compensation, not a fine.  For the Pursuer it may well amount to a feeling, in some way, of justice.  It may well be one thing (among many) that helps her to move on and begin to rebuild her life – at the age of 30 she has  many more years of life left to live and hopefully those years can be better than the past 6 years.

The case also has a wider impact; not because it decides something new, but because of its high profile nature.  It highlights that where a criminal prosecution is not possible due to the higher standard of proof (or even where a prosecution ends up in a verdict of Not Guilty or Not Proven) it may be possible to have recourse through the civil courts.  We recently saw the (failed) attempt to privately prosecute Harry Clarke when the Crown refused to initiate proceedings against him for alleged criminal offences arising out of the tragic George Square Bin Lorry crash.  It may be that the families of those bereaved (along with those who suffered injury in the crash) elect to raise civil proceedings against Harry Clarke (or more likely Glasgow City Council, on the grounds of vicarious liability, as his then employer).

It is unlikely that every failed prosecution will result in a successful claim for damages in the civil courts.  Although the Pursuer only needs to prove their case to a lower standard of proof; they still need to be able to present the court with evidence to support their claim and this may still prove to be a difficult task depending on the circumstances of each case.  There are also the costs associated with brining a civil claim, which can be substantial (although legal aid may be available to those who qualify for it).  Even where a Pursuer is successful in their claim it is unlikely (if not guaranteed) that they will not recover all of the money they have spent in pursuing the claim.  It therefore may not be economically viable (even where legal aid is available due to the “clawback” provisions in the Regulations) to pursue the case where the amount of compensation awarded is likely to be less than the difference between what has been paid in legal fees and what is recovered through an award of expenses.

These are all matters that a solicitor can guide a potential Pursuer through and are matters that are kept under review throughout the lifetime of a case.  It may be possible to settle cases out of court which can substantially reduce the cost (and stress) of the case.  However, the civil courts are (and always have been) a place where a victim of crime can take their case where the Crown cannot prosecute (or where a prosecution is unsuccessful).

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Court Fees, Access to Justice and Freedom of Information

On Monday new tables of fees enter into force for the Sheriff Courts and Court of Session in Scotland.  The new table of fees is necessary because of the new Simple Procedure that is coming into force next week to replace the Small Claim procedure and to partially replace the Summary Cause procedure in the Sheriff Court.  It would appear that the Scottish Government has used this opportunity to increase some other fees as well.

The other increases are part of the Scottish Government’s aim to get “full cost recovery” in the civil courts; that is, that so far as is possible those who litigate in Scotland’s civil courts fully fund the cost of running those civil courts.  I have grave misgivings about such a policy for access to justice (and I am not alone in that view).  This blog has, in recent times, moved more towards the field of Information Law and to that extent, I am going to look at these latest court fee rises in the context of Freedom of Information appeals.

In Scotland, under the Freedom of Information (Scotland) Act 2002, if a person is dissatisfied with how a public authority has handled a FOI request they can make an application to the Scottish Information Commissioner (SIC).  The SIC has the power under the 2002 Act to make a decision as to whether the public authority has complied with the Act, and if not, she has the power to state what steps the public authority must take in order to comply with the act (including to order that the public authority release information to the requester).  If a requester or public authority is unhappy with the Commissioner’s decision there lies a right of appeal (on a point of law) to the Court of Session.

The Scottish appeals procedure differs vastly from the appeals procedure under the UK Freedom of Information Act, where a right of appeal (on both fact and law) exists to a specialist First-Tier Tribunal and then on to the Upper Tribunal and the Courts (on a point of law only).  There is currently no charge for lodging an appeal with the First-Tier Tribunal, nor for any step of process or a hearing.  That is not the case in Scotland.

Unless the party bringing the appeal is in receipt of Civil Legal Aid, there are court fees to be paid.  The appeals are also dealt with under Chapter 41 of the Rules of the Court of Session and go straight to the Inner House.  For those who are unfamiliar with the Scottish court structure, the Court of Session is split into two “houses”.  The Outer House hears cases at first instance and is usually presided over by a single Senator of the College of Justice; while the Inner House is the appellate court and hears appeals from the Outer House as well as other courts, tribunals and regulators (such as the Sheriff Appeal Court and the Scottish Information Commissioner).  Appeals from the Inner House are (with permission) to the UK Supreme Court; the Inner House is therefore Scotland’s supreme Civil Appellate court.  In the Inner House, at least three of Scotland’s most senior judges will sit to hear the appeal.

On 28 November, the Court Fees (Miscellaneous Amendment) (Scotland) Order 2016 shall enter into force.  Schedule 1 to that Order sets out a new table of fees in the Court of Session.  Paragraph 1 in Section B of the Table sets a new fee for lodging an “Appeal, application for leave or permission to appeal, summons, or other writ or step by which any cause or proceeding, other than a family action, is originated in either the Inner or Outer House (to include signeting in normal office hours)”.  The new fee is set at £300, up from £214.  So, in order to lodge your appeal against a decision of the SIC the Appellant (whether an individual or public authority) needs to stump up £300.  The Respondent (who is the SIC) will also have to pay £300 (again, up from £214) to lodge their Answers to the Appeal.

There may be other fees to pay along the way, depending on the procedure that ends up taking place; however, when it gets to the hearing of the appeal, the costs start to mount up significantly.  Each party (appellant and respondent) will be required to pay £500 (up from £239) per 30 minutes (or part thereof).  Therefore, a hearing that lasts a full court day (roughly 5-6 hours) will result in a court fee of between £5,000 and £6,000; and that is before solicitors’ fees and the fees of Counsel are added.  This is an astronomical figure.  It is not paid by anyone in receipt of legal aid (and legal aid is available for FOI matters in Scotland), but you do not have to be very well off not to qualify for legal aid.

This represents a significant barrier to accessing justice.  These are sums of money that most middle earners will struggle to get their hands on, even if they attempt the appeal as a party litigant (which given the complexity and sometimes archaic nature of the Court of Session Rules is no easy task).  When it comes to the question of FOI, it only strengthens my belief that appeals against decisions of the SIC should be to a lower court or tribunal in the first instance.

There is a much more fundamental point however; the civil courts should be accessible to everyone.  The level that court fees are rising to (and they are going to continue to rise over the next few years as the Government moves towards “full cost recovery”) presents a very real barrier to justice.  The Scottish Government accepted that fees represent a barrier to justice in respect of the Employment Tribunal fees set by the UK Government (and has pledged to abolish them when the power to do so comes to the Scottish Parliament in the near future).  However, the Government seems happy to continue with a policy of full cost recovery (that was, admittedly, started under the Labour/Liberal Democrat Administration that left office in May 2007).  It is a flawed policy that will place a very real barrier to the courts for very many people.  That, is a tragedy for justice and for democracy.

A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

Do the new civil legal aid rules prevent access to justice?

Access to justice is an important aspect of the operation of the Law.  There is little point in giving people rights under the law if they cannot seek to enforce those rights through the courts where necessary.  The Law infiltrates every element of our lives, it governs even the most basic of tasks we do each and every day and we give little thought to it.  A person who is prevented from accessing justice based simply on the cost of litigation is an enormous failure; it devalues the rights of that individual if they cannot seek to enforce them.  It is upon this basis that we provide legal aid to litigants who cannot afford the costs of litigation (in theory) and this extends to both the criminal and civil arms of the legal system.

Legal Aid is of course public money and in times where public expenditure is tighter than at any other time in the last decade the legal aid budget has had to take a share of the cuts imposed by Government.  This has an impact upon access to justice as the only real way to cut the legal aid bill is to make it harder for people to gain public assistance in relation to cases before the courts.  Efficiency savings alone would not give the savings expected by the Government in relation to the legal aid bill.

I was reading Ian Nisbet’s article on Yell.com yesterday evening around changes to civil legal aid that will have an impact upon the ability of children, and indeed students, to seek to have their rights enforced before the courts.  Reading it gave me great concerns around access to justice for a group of people who are particularly vulnerable.

Prior to the changes to the civil legal aid rules if a child was seeking to enforce their rights through the courts, only their own assets and income would be taken into consideration.  The normal position for a child is that they have no real assets or income of any real value and would therefore probably have qualified for legal aid automatically.  Now, however, with their parent’s income and assets being taken into consideration the child may not qualify for legal aid.  There are a number of issues with this.

Does the alimentary provisions extend to funding legal action?

The central idea to these rule changes is the alimentary provisions within the Family Law (Scotland) Act 1985.  These provide that a parent has a legal duty to financially support a child until they attain the age of 18, or until the age of 24 where they “reasonably and appropriately undergoing instruction at an educational establishment, or training for employment, or for a trade, profession or vocation”.

Is such a change to the legal aid rules really what was intended when these provisions were drafted?  Certainly when one looks at them in context it certainly does not appear that it was what they intended.  However, the provisions now extend to the funding of legal actions (there are some exceptions to the rules, which I will come on to look at later). Does this duty upon the parents translate into the right that co-exists automatically? I would venture to suggest, most humbly, that it would.  It would be the only logical option.

The options open to the child are not realistic

Assuming the parent is refusing to fund the legal action after the Scottish Legal Aid Board has refused funding for legal aid, what options does the child have?  Well, the child could seek to challenge the SLABs decision in a judicial review.  It’s not really a realistic option as Judicial Review is an expensive process and, well, the whole issue is the child’s inability to fund a legitimate action before the courts.  The other obvious option isn’t all that practical either as it would be to sue their parents for the funds required…again we’re faced with the question of exactly how the child in question is able to do this given the issue at hand is their inability to fund a legal action.

The result is that for the child who has been refused legal aid and who is facing a barrier in relation to their parents funding the action they are effectively prevented from accessing justice to uphold and enforce their rights.

Exception

There is an exception provided for in the regulations.  Regulation 3(b) of the The Civil Legal Aid (Scotland) Amendment Regulations 2010, in ammending the 2002 regulations provides: “Paragraph (1) does not apply if its application in the particular circumstances would be unjust or inequitable.”

This exception is important as it means that SLAB can, if it decides that to do so would be unjust or inequitable, ignore the requirement to consider the parent’s assets and income in deciding whether to grant a child legal aid.  This may not affect the initial decision, but maybe it will affect the outcome of an appeal against a decision made to SLAB.  It might be that once it is clear that the parents are going to refuse to fund the action and all other avenues have been demonstrably explored and ruled out that SLAB might just decide to reverse its original decision and grant legal aid.  If it does not though, the issues described above may well come into play again.

As someone who does not actually practice law, but rather is still at the elementary stages of studying it, there may be things that I have failed to consider that are material to the above.  I’m not writing this as a definitive guide to the issues surrounding the new legal aid rules, but rather, it is an expression of the concerns that I have as a result of my knowledge on the matter.  Access to justice is vital to ensure that the law has real meaning.  If a person cannot enforce their rights under the law then why have them at all?  It’s as if they don’t exist in the first place!

Examples borrowed from The Absolvitor

The Media and Police Investigations

Before I begin I will make a couple of things clear.  Firstly, I am not and do not claim to be an expert on police investigation techniques or process.  Secondly, I am not making any specific accusations against any particular journalist or media outlet.

Last week the Attorney General in England took the unusual step of effectively reminding journalists of their obligations under the Contempt of Court Act in relation to their coverage of the investigation into the death of Jo Yates.

I am all for the press having the freedom to report on such cases and indeed anything that they feel is worthy of being printed or broadcast (even if I disagree with their editorial decisions and policies).  It is an important right in a democratic society and one that I will vigorously defend.  Curtailment of this right should only go so far as is absolutely necessary in a free and democratic society (and that goes for any other fundamental freedoms, rights and liberties).

However, with all rights comes responsibility, and of late (not just with the Jo Yates murder inquiry, but indeed in many other stories featured in the media over the last few years) the media seem to have forgotten about the responsibilities that come with such rights.  They must make sure that everything they present is balanced, fair and does not in any way prejudice a person, group of persons or a process.  They must also respect the privacy of private individuals.

A prime example of the privacy issue can be seen in the Jo Yates case.  The effective media scrum to get the best footage or shot of the grieving relatives as they visited the site where Jo Yates’ body was discovered.  In my view, respect for the privacy of those grieving the loss of Jo Yates demanded that this very difficult and emotional moment was a private one not broadcast on the national television news.  Indeed, I’m not really all that interested in how the family are grieving and what they are doing in order to help themselves come to terms with the loss of Jo Yates.  I’m more interested in the capturing and prosecution of the person responsible for such a heinous crime.

A further responsibility that the media have is to respect the privacy of police investigations and not comment critically on the investigation.  The fact remains that the media are only aware of what the police tell them and that will comprise of so little that it is fair to say the media don’t have a clue what’s going on.  It’s unhelpful and not really in the public interest for them to do these things: indeed it may even hamper a police investigation as they spend time countering accusations of ineffective investigations made against them by the media.

I have enough confidence in our police forces that they will conduct investigations into such serious and heinous crimes to the best of their ability with the knowledge and resources available to them.  It is up to the police to decide what is significant enough for them at that time to follow up.  Resources are limited (as much as we would like the opposite to be true, it is not) and as such the police cannot possibly follow up on every single possible lead received.  They must assess how each lead fits into what they already know and decide from there which leads are important enough for them to follow-up at any particular stage of the investigation.

Further to that, it is for the police alone to decide what should be released into the public domain through the media and for them to decide when and how the media can assist their investigation.  It is highly irresponsible for the media to get “experts” in who have no direct knowledge or involvement with the case in hand to discuss what should or might be happening.  This is pure speculation and does nothing to assist the police and their investigation.

Part of the problem may stem from the 24 hour news provision.  The various news stations have this need to fill every single second with what they consider to be news and can end up digging into a story so much that what they end up reporting is so far removed from the situation in hand it’s laughable.

Character assassination of those arrested on suspicion of these high profile crimes is utterly unnecessary and potentially very dangerous for the media outlets.  I’m not normally in favour of censorship of the media, but I really see no reason for the name of people arrested during the course of an investigation to be named in the media and would be in support of legislation to prevent the naming of suspects in all cases until they have at least been charged, and in some cases until conviction.  What if, and here’s an idea, the person arrested is in fact innocent.  What use has the media served by digging up people who knew X 2 or 3 decades earlier talking about their hair colour or how they found them to be “strange”? That of course, is merely conjecture by one or two individuals, but it suits the media in this country down to the ground.  It gives them something to report (rather than reporting on worthwhile things).   Of course they find the worst photograph of the suspect and together with their gutter investigations and reporting make it look like they are probably guilty.  On some occasions reports by the media during investigations appear to be more like trials by the media of each individual who happens to be arrested or interview in the course of an investigation.

There is also an arrogance surrounding the media generally in such cases.  In a news item I watched on TV today I heard the reporter say the following (or something almost exactly similar):

“There has been no reason or explanation for the delay in giving us this information”

This quote was in relation to the information released by the police today that Jo Yates was wearing only one sock, not boots and no jacket when she was found dead on a road near a quarry.  I’m sorry, but the police are not answerable to the media as to why they have chosen to release information when they have (and not later or earlier).  In fact, the police are under no obligation to give the media any information in relation to cases they are investigating.  The police release information to the media when they feel that to do so may assist their inquiries.

We have a system in this country to bring people to justice.  The police investigate a crime, any case against a person is then put before a court and the court then decides upon the guilt or innocence of an individual based on the evidence put before them.  The media can play an important part in helping to obtain information that can help the police find the right individual to put before the court but they must not in anyway, act in a way that is reckless or irresponsible.

I heard an argument, on TV, over this matter during one of the many reports on Jo Yates saying that they way in which the British press have conducted themselves is nothing compared to the way in which the press conduct themselves in the USA.  This was an apparent defence of the British media, but I’m sorry just because the media in the USA is worse doesn’t mean that either are acting correctly.

I’m sure by now that you will have got the point I am trying to make.  If you haven’t in short it is this: the media must act responsibly when exercising its right to freedom of the press and that I am rather annoyed with the way in which the media have been conducting themselves over the last few years.

House of Lords Ceases Judicial Function

 

Today saw the final sitting of the House of Lords in its judicial function. This is a constitutionally historic day as it finally sees the end of the judiciary sitting as part of the legislature. The legislature and the Judiciary are at last separate from one another.

Friday will see the Law Lords packing up and moving to the new Supreme Court of the United Kingdom, where they will begin sitting in October. The current Law Lords will remain peers of the House, but will be unable to partake in activities in the House of Lords while they are still sitting in the Supreme Court.

The House of Lords is currently the highest court of appeal for all civil cases in Scotland, this function will transfer to the Supreme Court of the United Kingdom. As far as Criminal cases are concerned the High Court of Justiciary (sitting in its appellate function) will remain the highest court of appeal in Scotland.

One of the final judgments to be given in the House of Lords was that the UK Law on assisted suicide is to be clarified. This is long overdue and will mean that the law on assisted suicide will at least comply with the European Convention on Human Rights, even if it turns out that the clarification is not what it is hoped it will be (i.e. that those who travel to Switzerland – or other similar country – with loved ones will not be prosecuted on their return to the United Kingdom).

An interesting and historic day in UK legal terms. It will be good to see the Supreme Court up and running in October.

Genie sued for harassment

A Saudi national newspaper has reported that a family is suing a genie over alleged harassment and theft.

The family alleged that the spirit threatened them, threw stones and stole mobile phones.  A court local to them is investigating their claim.  Islamic theology says that genies are spirits which can possess or harass people.

The head of the house spoke to the Saudi newspaper, but did not want to be named.  He said the following:

“We began to hear strange sounds… At first we did not take it seriously, but then stranger things started to happen and the children got particularly scared when the genie started throwing stones.”

Good luck to the court in establishing the truthfulness of these accusations, that’s all I can say!