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).