English law has no general theory to co-ordinate tort law and criminal law. Most European legal systems managed to develop one centuries ago. For instance, France has long perceived some kind of unity of civil and criminal fault and has given precedence to a criminal prosecution over parallel civil claims.Footnote 1 In addition, the French partie civile links the procedures for civil wrongs and criminal actions, with the victim being a key player in a criminal action.Footnote 2 In Spain, not only will a criminal prosecution usually deal with any compensation for the victim but since 1848 it has done so using rules in the Spanish Criminal Code, not the Civil Code.Footnote 3
General theories like these are based on a paradigm of the relationship between the victim of a crime and the state. In both France and Spain, the criminal justice system has long been shaped to assist the victim, carrying the individual's burden while fulfilling the state's duty to the public at large. Without this overarching framework, English lawyers tend to see the places where tort and crime grate against each other as isolated incidents, rather than pieces in a broader puzzle. For example, since 2003 an English statute has sought to reduce trespass to the person claims brought concerning the events which led to the claimant's conviction for an imprisonable offence.Footnote 4 Such claims are thought to denigrate the criminal justice process and so are restricted: the plaintiff must obtain leave to bring the trespass claim and leave is only granted where the defendant's acts were grossly disproportionate. Recently the Court of Appeal has retrospectively granted leave to bring such a battery action, despite the legislation not expressly permitting that.Footnote 5 In the same year, the House of Lords held that the defence of ex turpi causa can defeat a claim when a tort had caused the victim to lose full mental responsibility before he killed someone: the plaintiff sought damages for the income lost while he was serving time in prison for the killings and the House of Lords rejected this “shift” of the criminal law's sanction to the tortfeasor.Footnote 6 Further recent examples of intersections between tort and crime have been discoveries,Footnote 7 and rediscoveriesFootnote 8 of ambiguities in nineteenth century statutes which bridge tort and crime. In these modern cases there has been little analysis of the underlying tensions between tort and crime.
In fact, the doctrinal uncertainty now giving rise to that tension in English law has come to prominence in just the last 150 years. Until the late 1800s, English law put the interests of the state ahead of all others, even putting obligations on the victim to prosecute a crime instead of concerning itself with whether he received compensation. Indeed, until 1870, a convicted felon forfeited all his property to the Crown so a victim who was forced to prosecute first lost all chance of recovery. In the mid-eighteenth century English law began to see the victim of a crime as someone to help rather than only to harness. However, that transition remains incomplete: the victim is no longer pulling the cart but nor is he now riding up front.
This paper traces one key example of the overlap between tort and crime and explains the impact of our disjointed thinking. For about 400 years English civil courts have accepted some form of pre-eminence of the criminal law where civil and serious criminal liability co-exist. This has often been described as the rule that “a trespass merges in a felony”, even though, as will be seen later, this phrasing was only accurate for a short while. In this article, a norm to control the timing of a civil action and a criminal prosecution will be called a “timing rule”.
Timing rules are significant. They have had a practical role in solving civil disputes and in shaping possible claims in tort. While it is true that criminals are often not worth suing, the case law shows that plaintiffs clearly saw practical value in civil claims preceding criminal prosecutions.Footnote 9 Even more importantly, the timing rule is relevant to our understanding of law beyond the cases in which it played a role. Its complex and surprising history demonstrates the influence of procedural, substantive, policy and mechanical factors in the development of legal rules. It also shows just how important and intricate the interfaces of tort and crime can be.
I. Three Phases in the Timing Rule
The history of timing rules can be divided into three phases. The first is from 1607 to 1914, and represents the classical period. Here a merger rule became established, largely to protect the state's interests in forfeited property and in promoting private prosecutions. However the courts had not developed a way to enforce it. The second period is from 1914 to 1967 when the courts settled on a sanction, thereby temporarily stabilising a timing rule but ultimately its value and coherence were sufficiently doubted that it was removed by legislation. From 1967 English law has been in its third phase, with the removal then return of a timing rule. The new rule is in the form of a discretion to suspend a parallel civil claim but only where the interests of the defendant, not the state, are prejudiced.
A. 1607 to 1914: Rule without Expression
In the early common law, “crime” and “tort”, as we call them now, were equally valid ways for a victim to pursue justice for a wrongful act.Footnote 10 The most “civil” remedy, the writ of trespass, could be brought or a more penal action (indictment or appeal of felony) could be used. The choice seems to have been between compensation or vengeance, and this choice was one for the victim. This position continued from around the 1200s to the end of the 1500s.Footnote 11
The law's indifference was replaced by precedence for the criminal action. From 1607 until 1967 a civil action based on facts which constitute a felony could not take place before the prosecution for the felony. The analysis of Watkin Williams J. in Midland Insurance Company v Smith is an accurate summary of the law:
The history of the question shows that it has at different times and by different authorities been resolved in three distinct ways. First, it has been considered that the private wrong and injury has been entirely merged and drowned in the public wrong, and therefore no cause of action ever arose or could arise. Secondly, it was thought that, although there was no actual merger, it was a condition precedent to the accruing of the cause of action that the public right should have been vindicated by the prosecution of the felon. Thirdly, it has been said that the true principle of the common law is that there is neither a merger of the civil right nor is it a strict condition precedent to such right that there shall have been a prosecution of the felon, but that there is a duty imposed upon the injured person, not to resort to the prosecution of his private suit to the neglect and exclusion of the vindication of the public law.Footnote 12
These three ways to resolve such claims are, in reality, quite closely related.
The “drowning” approach, the first mentioned, appears in what was arguably the earliest case discussing the relationship between a felony and trespass arising on the same facts: Higgins v Butcher in 1607. Footnote 13 As is typical of the early cases, there is doubt over what Higgins v Butcher actually decided. Most likely it decided a husband could not maintain an action for the harm suffered by his wife when she was killed. However, in addition to the idea that the right of action died with her, her death was also said to constitute a wrong to the Crown. That wrong was “converted into felony, and that drowns the particular offence and private wrong offered to the master before; his action is thereby lost.”Footnote 14 The reasoning in respect of the felony was unsupported by authority and arguably not necessary to determine the case. Similarly unclear is the second case of Markham v Cobb in 1625.Footnote 15 The defendant pleaded that the plaintiff had already indicted and convicted him for burglary, so the second action, in trespass, did not lie. Dodderidge and Whitelock JJ. saw no problem with the later civil action unless the preceding criminal one had been an appeal of felony and the plaintiff had been nonsuited. On the other hand, Jones, J. seemed to hold that if the felony also constituted a trespass, the trespass was entirely “merged” with the felony. Sadly these two views are not reconciled by the court which merely found an unspecified technical defect in the plaintiff's case. Like many courts to follow, it noted the significance of the issues without providing a resolution.Footnote 16
In the seventeenth century the courts departed from the drowning or full merger position. Both Dawkes v Coveneigh in 1652Footnote 17 and Lutterell v Reynell Footnote 18 in 1670 suggested that there was not merger, but that prosecution of the felon was a condition precedent for the actionability of the civil law claim. This was the second of Watkin Williams J.'s categories. Both cases express fear that the felony prosecution will be “smothered” if the plaintiff could elect to bring a civil suit.Footnote 19 None of eighteenth century cases offer clarification.Footnote 20
By the 1800s, the law began to focus on promoting viable criminal prosecutions, rather than developing the doctrines of merger or strict condition precedent.Footnote 21 This was the third and final of Watkin Williams J.'s categories. The first clear case in this line was Crosby v Leng in 1810. Leng had been acquitted on a charge of felonious assault and the court held that a civil action could now proceed. Lord Ellenborough CJ expressed this as a question of timing: while public justice must not be prejudiced, private actions could be brought on the same facts once public justice was secured.Footnote 22 Other than occasional returns to the condition precedent analysis,Footnote 23 the courts turned to exploring and delimiting what would prejudice public justice.
First, the duty was satisfied once the felon had been convicted just as if he had been acquitted so a contingent civil claim could then proceed, according to Lord Tenterden C.J. in Stone v Marsh.Footnote 24 This case was the start of a long relationship between fraudsters and timing rules; in this case a fleeting appearance by the infamous banker Fauntleroy.Footnote 25 Here Fauntleroy and his bank merely acted on the forged instruction by one trustee to sell stock to the detriment of the other two. Before the fraud came to trial, Fauntleroy was executed for other crimes. The defendant's counsel tried a new line of argument: he asserted that the bank could not be made liable for ratifying what was in fact a felony. However, this innovative argument was dismissed by the court.Footnote 26 Instead, the true ground of the claim was identified as the receipt of the proceeds of the fraud. After Fauntleroy's conviction and death, an action on that ground could proceed. The phrase, “the action is merged in the felony,” was said to be “not at all times and literally true.”Footnote 27
Second, and building on Stone v Marsh, the duty to prosecute felons did not suspend a civil action against non-felons according to Park J. in Marsh v Keating in 1834.Footnote 28 This was confirmed in White v Spettigue in 1845 in the Court of Exchequer.Footnote 29 At first instance Rolfe B. had applied a timing rule to third party possessors of stolen goods but on appeal he followed Pollock C.B. and held that the rule did not apply.Footnote 30 The courts accepted that a plaintiff could not “waive” the felony but decided that a plaintiff did not “waive” anything when he sued the mere possessor of stolen goods.
Third, if a prosecution is left incomplete despite the plaintiff's best efforts, civil courts will nonetheless allow his claim, according to Dudley v Spittle in 1860.Footnote 31 In Dudley v Spittle the plaintiff's earlier prosecution had not been carried through because the trial judge thought justice was sufficiently done by sentencing the defendant for another forgery to which he had pleaded guilty.Footnote 32
From about the middle of the nineteenth century, once suspension of the civil action became the rule, the courts began to consider the mechanism to hold that action in abeyance. The courts first tried non-suiting the plaintiff as one way to deal with a civil action which breached the suspension rule. This order terminated the particular action but without resolving its merits. It had been used first in Gimson v Woodfull in 1825,Footnote 33 but that case was seriously doubted on its facts in White v Spettigue in 1845. Footnote 34 The nonsuit was then promoted in 1863 in Wellock v Constantine, a rape case. The trial judge had indicated that he would have found for the defendant unless counsel accepted being non-suited, so counsel gave way.Footnote 35 On appeal, Pollock C.B. and Bramwell B. accepted this use of a non-suit.Footnote 36
However, Wellock v Constantine was effectively overruled in Wells v Abrahams.Footnote 37 The case concerned the disappearance of jewellery given as security in anticipation of a loan. The defendant obtained a rule for a new trial on the grounds that trial judge should have non-suited the plaintiff based on Wellock. Counsel for the plaintiff argued that Wellock showed no more than that a judge may non-suit a plaintiff with consent. In reality, Wells v Abrahams was a case where the defendant had tried his luck in defending a civil action and was then complaining when he lost. In addition, by the time of argument in banc a criminal prosecution for feloniously stealing the broach had been instituted. The court confirmed the existence of a timing rule but did not enforce it.Footnote 38 It was doubted whether the defendant could seek to rely on the allegation of a felony, but simultaneously deny being a felon.Footnote 39 Cockburn C.J. thought it conceivable that a court might stay civil proceedings as being an abuse while criminal proceedings were pending or ongoing; but he could not see any authority for a judge at Nisi Prius, which had only been delegated authority by a court of record, to non-suit the plaintiff or direct a verdict for the defendant.Footnote 40 Blackburn J. noted that cases where a timing rule had been implemented in some way were recent and rare.Footnote 41 If there were pending criminal proceedings then a stay would be the only recourse, but he knew “no instance” in which a court had done so.Footnote 42 Quain J. noted both the inconsistency and the tactical nature of the delayed mention of felony, but suggested a demurrer or motion in arrest of judgment as possible ways to resolve the facts before the court.Footnote 43 The form of the timing rule's enforcement was important because so long as the civil action was still valid the plaintiff had leverage over the defendant, whether in settlement or in a later action.
At the same time as the courts began to think about what the appropriate sanction for breach of a timing rule was, they continued to tease out exactly how forcefully prosecution would be required. A series of cases focused on whether the particular plaintiff had to prosecute the felon. Thus, a father did not have to prosecute the felony but could claim for the running down, loss of service and funeral expenses for the death of his daughter: Osborne v Gillett.Footnote 44 Similarly, Ex p Ball/In re Shepherd held that a trustee in bankruptcy did not have to prosecute. There, Baggallay J. gave five principles for who should prosecute. These highlighted that it is only the duty of the person injured to bring the prosecution and even this falls away if someone else does it:Footnote 45
(1) That a felonious act may give rise to a maintainable action.
(2) That the cause of action arises upon the commission of the offence.
(3) That notwithstanding the existence of the cause of action, the policy of the law will not allow the person injured to seek civil redress, if he has failed in his duty of bringing or endeavouring to bring the felon to justice.
(4) That this rule has no application to cases in which the offender has been brought to justice at the instance of some other person, or in which prosecution is impossible by reason of the death or escape of the felon.
(5) That the remedy by proof in bankruptcy is subject to the same principles of public policy as those which affect an action.
Then came the insurance case of The Midland Insurance Co. v Smith in 1881, where Watkin Williams J.'s highly detailed but obiter discussion of the law was less precise: that the rule does not require a prosecution to precede a civil action in all cases.Footnote 46
However, the question of sanction had still not been resolved and this showed no signs of changing. There was some inconclusive but influential discussion of the matter in the 1880s Irish case of A v B; that discussion is particularly interesting because neither party wanted the rule to apply. Holmes J. thought there was a summary power to stay civil proceedings, one the court could invoke of its own motion where it appeared proper, for example when a criminal case was “actually pending.”Footnote 47 However, the facts before them did not suggest this, so the court should not interfere. This was also the opinion of Johnson J. and Sir Michael Morris C.J., though the Chief Justice expressly did not decide what sanction was available.Footnote 48 Only O'Brien J. approved both the court's discretion to stay on its own motion, and a stay on the facts before him:
I entertain an opinion – founded upon the policy of the criminal law, and the practice which has existed for very many years in this country, and which practice must, to a large extent, depend upon experience and tradition – that where the Court, from information before it, sees that acts of a grave criminal nature are charged against a party in a civil action, it will, in view of the enormous importance of the matter to the administration of justice, restrain the proceedings until the criminal matter is disposed of.Footnote 49
No solution had been conclusively adopted as the nineteenth century ended. In Roope v D'Avigdor, Cave J. treated In re Ball as definitive, adding that a demurrer was not the right way to give effect to the rule.Footnote 50 No answer was forthcoming from probably the last case in this period, Appleby v Franklin in 1885. The court relied on, Markham v Cobb, amongst others, for a theoretical summary power to strike out part of a statement of claim disclosing a felony.Footnote 51 However even this was obiter since the timing rule was held to apply only to the party directly injured by the felony, not a father suing for the seduction of his daughter.
Commentary on the rule had been sparse but by the end of the nineteenth century, most commentators criticised it. Commentators also seemed to believe judges doubted it. Stephen's Commentaries moved from a position of “gross and atrocious” injuries causing the private action to be “swallowed up in the public” in the first edition in 1845,Footnote 52 to acknowledging the mere suspension of the private wrong in the 8th edition in 1880;Footnote 53 but by 1890 he thought that Wells v Abrahams had made the rule “practically impossible to enforce”.Footnote 54 Addison, having been clear on the duty in the first edition in 1860,Footnote 55 moved to a position of doubt about the rule, at least by 1893.Footnote 56 A writer in the Justice of the Peace Journal in 1883 finished a summary of the law without enthusiasm: “… although the rule may still be said to have some shadowy existence, it is so honeycombed by exceptions, and so difficult, if not impossible, to bring into application, that it merits very little consideration.”Footnote 57 Ames, lecturing around 1890, said that idea “has been much criticized, and it is doubtful if it is still law.”Footnote 58 From the first edition of his work on tort law in 1887, Pollock thought that the tide had turned against the rule:
But so much doubt has been thrown upon the supposed rule in several recent cases, that is seems if not altogether exploded, to be only awaiting a decisive abrogation. The result of the cases in question is that, although it is difficult to deny that some such rule exists, the precise extent of the rule, and the reasons of policy on which it is founded, are uncertain, and it is not known what is the proper mode of applying it … On the whole there is apparent in quarters of high authority a strong though not unanimous disposition to discredit the rule as a mere cantilena of text-writers founded on ambiguous or misapprehended cases, or on dicta which themselves were open to the same objections.Footnote 59
However, while authors were busy attacking the rule particularly during a lull in cases, the courts were about to select their means to implement it.
B. 1914–1967: Moving to a Stay
It was another sexual offence case before the Court of Appeal in 1914 which settled on a stay of action as the way to express the suspension rule. In Smith v Selwyn the female plaintiff brought a civil action alleging deception, drugging and actual or attempted non-consensual sexual intercourse. The plaintiff argued that these facts constituted a misdemeanour contrary to the Criminal Law Amendment Act 1885, s. 3(3).Footnote 60 The defendant argued that the claim disclosed a felony, contrary to s. 22 Offences Against the Person Act 1861, so suspending the civil action until after the plaintiff prosecuted. Counsel for the defendant argued from Cave J. in Roope v D'Avigdor, Cockburn C.J. in Wells v Abrahams and the Irish case of A v B, that a stay of action was the correct course.Footnote 61 Counsel for the plaintiff argued that Wells should be followed: the case should proceed but the judge may decline to enter judgment for the plaintiff. Somewhat surprisingly, the court accepted the arguments of the defendant:
It is not easy to find a statement in any case as to what is the course which the Court ought to adopt in a matter of this kind. Some of the decisions are not easy to reconcile. This, however, is certain, that the Court has a right, if not an imperative duty, to stay the proceedings in a civil action for damages, if it is clear that that which is the basis of the claim in the action is a felony committed by the defendant against the plaintiff.Footnote 62
The court had received relatively detailed citations, including to the 9th edition of Pollock in 1912 (still bearing his forecast of the impending abrogation of the rule).Footnote 63 However, judgment was not reserved and it is unclear how much time was taken to consider them. If the timing rule was to be followed, the case before the court could not easily have been resolved without a decision on how to implement the rule. Given that fact, a stay was probably the result more supported by authority. On the facts, the proceedings were stayed but leave granted to the plaintiff to amend his claim to better avoid relying on facts suggesting a felony. Nonetheless, the certainty which Smith v Selwyn finally provided may have helped to ensure the survival of the rule to which it gave effect.Footnote 64
Judicial comment on Smith v Selwyn was of three kinds. First, there was criticism of the decision. For example, Lord Parker in The Amerika in 1917 was critical of encouraging the plaintiff to present a case where a felony did not appear on its face but where it might still exist in the background.Footnote 65 Second, there was cautious application. In Carlisle v Orr, the Court of Appeal of Ireland approved the rule, though with a warning that the stay was the most drastic result: a court should not order one unless it was necessary.Footnote 66 Third, there were more express doubts about the value of the rule itself. An early example is found in the Irish Court of Appeal in Tyler v County Council of Cork in 1921.Footnote 67 More powerful criticism came from the House of Lords in Rose v Ford, where Lord Wright described the obligation on the private person to prosecute as an anachronism.Footnote 68 However, the Smith v Selwyn line was certainly being followed,Footnote 69 on one occasion simply by copying out the King's Bench report headnote.Footnote 70
After the Second World War, the rare reported cases in this phase were marked by small issues of interpretation and a return to the minutiae of pleading. The extreme nature of a stay of proceedings was picked up from Carlisle v Orr in Jack Clark (Rainham) Ltd v Clark, which also criticised the artificiality of semantic investigations of pleadings to disclose a felony.Footnote 71 Such semantics were highlighted by a very neat point raised in Fowler v Lanning: Diplock L.J. noted that a failure in pleadings to allege the fault with which harm was caused had excluded the defendant in Fowler v Lanning from pleading the Smith v Selwyn timing rule to stay the civil claim.Footnote 72 The case was otherwise unconnected, dealing with whether and what fault should be alleged in an action of trespass. Finally there was a pair of cases on the limits of encouraging prosecution: from 1959 a plaintiff need only report the matter to the police before bringing a civil action, regardless of whether the police investigate;Footnote 73 by 1965 it was said that a private individual, certainly if of limited means, need not prosecute when the police have declined to do so.Footnote 74
As interpretation of the rule was made sufficiently otiose by Smith v Selwyn's reformulation, judges turned to criticising it: the rule was unfair, complex, confusing and out of date. The judiciary were echoing the doubts expressed by commentators at the end of the nineteenth century, even though the timing rule's content and existence was now more certain. According to Peter Glazebrook, “In its present form the rule can find favour only with those who believe that litigation should resemble as closely as possible a game of snakes and ladders …”Footnote 75
C. From 1967: Discretion to protect
These doubts led to reform, but by means that were indirect and ultimately unsuccessful. The Criminal Law Revision Committee's Report on Felonies and Misdemeanours in 1965 (“CLRC Report”) had recommended the removal of the distinction between misdemeanour and felony and this was brought about by the Criminal Law Act 1967 (“CLA 1967”), s. 1. The Report had dealt with the timing rule in only one paragraph; finding that the rule had “become unnecessary, especially as it does not apply to misdemeanours, and should be allowed to lapse.”Footnote 76 However, while the Report argued that removing distinctions between felonies and misdemeanours would remove the timing rule, no section in the Act was devoted to that task. There was no new approach, no guidance on how such cases should be resolved. This is in contrast to the other issues dependent on their being a felony, such as the power of the arrest, penalties for assisting offenders or concealing crimes, where the CLA created new rules hinging the term “arrestable offence” in place of “felony”.Footnote 77
The first case post-CLA 1967 was Jefferson v Bhetcha in 1979. Forbes J., at trial, had adjourned an application for summary judgment in respect of misappropriated cheques, apparently because he believed that a defendant should not be forced to disclose a defence in a civil case while a criminal one on the same matter was pending.Footnote 78 The Court of Appeal were not referred to the CLRC Report nor the CLA 1967 and the court did not refer to the cases of Smith v Selwyn and Wells v Abrahams which had been cited to them.Footnote 79 Indeed, the only case cited by Megaw L.J. in the sole judgement from the two man court was doubted by him. That was the Supreme Court of Victoria case of Wonder Heat v Bishop where the English timing rule was applied to adjourn a claim of money had and received because the defendant was already committed for trial.Footnote 80 That case was relevant because it had persuaded Forbes J. at first instance in Jefferson v Bhetcha to adjourn the case pending the criminal prosecution in order to prevent disclosure of the defendant's defence. Megaw L.J. doubted the outcome of Wonder Heat v Bishop and Forbes J.'s belief that a criminal prosecution must be protected from parallel civil proceedings. The judgment in Jefferson v Bhetcha, handed down only a day after argument was heard, set out a new approach and became the leading case.Footnote 81
First, the court having control of the civil proceedings could, in the exercise of its discretion under the Supreme Court of Judicature (Consolidation) Act 1925, s. 41, stay those proceedings if it appeared to the court that justice so required. To say that a vexatious civil action could be stayed was orthodox reasoning, and had been used in purely civil cases for some years.Footnote 82 However, the innovation was that the discretion could be exercised where the civil courts were dealing with a matter that could or should come before the criminal courts first. It was also the first time statutory authority had been used for the timing rule.
Second, in deciding whether to exercise this discretion, the judge would have to balance the justice between the parties:
There is, I say again, in my judgment, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit … or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be … in the contemporaneous criminal proceedings … By way of example, a relevant factor telling in favour of a defendant might well be the fact that the civil action, or some step in it, would be likely to obtain such publicity as might sensibly be expected to reach, and to influence, persons who would or might be jurors in criminal proceedings … [or] for example, enabling prosecution witnesses to prepare a fabrication of evidence or by leading to interference with witnesses or in some other way.Footnote 83
No stay was given in Jefferson v Bhetcha. Courts have continued to apply the test strictly and stays have not been given easily.Footnote 84
Unlike the merger rule's origins, this form of the rule began with the clear purpose of protecting defendants. With this foundation set, litigation could immediately move to test the edges of the rule's application. For instance, there were a number of cases on the application of the rule to tribunals when there was a potential for future criminal prosecutions. In line with the jurisdiction of such tribunals, very often such cases involved employees, financial mismanagement and/or the state.Footnote 85 The question was settled in general terms in R v BBC, ex p. Lavelle in 1983: the civil law rule applied to disciplinary hearings, though not to judicial review;Footnote 86 eight years later it was extended to judicial review as well.Footnote 87
Some external and internal adjustments of the system took place as the twentieth century closed. External to the civil law, but nonetheless relevant, were developments in the criminal law. Thus, for example, when criminal law downgraded the protection of the “right to silence” the civil law took this as validation of its reluctance to consider aspects of criminal procedure.Footnote 88 On the other hand, within the civil law other developments affected the form of the new rule. In particular, the new Civil Procedure Rules came into force.Footnote 89 A Practice Direction became the governing provision for the timing rule in 2001.Footnote 90 It made clear that in an application for the stay of civil proceedings pending the determination of related criminal prosecution: any party to the civil or criminal proceedings may make the application; every other civil party must be made a respondent in the application; the application must give grounds for and estimate the duration of the stay and finally that it was not necessary for the prosecutor or defendant in the criminal proceedings to be joined as a party to the civil case.Footnote 91
In V v C, the first case after the Civil Procedure Rules came into force, the case law from Jefferson v Bhetcha was developed and supplemented. The court added some examples of factors to balance when considering a stay: for example, that adverse inferences could be drawn from silence in certain circumstances in both the civil and criminal law and that a positive defence is more likely to exculpate than incriminate. The court also held that where a defendant makes the application, the onus is on him to demonstrate why that discretion should be exercised and the stronger the case against the defendant in the civil context the higher the onus on the defendant should be.Footnote 92
The cases began to take more notice of other areas as well, such as the Human Rights Act 1998,Footnote 93 and other issues of constitutionality.Footnote 94 However, while the civil judges looked further afield for relevant law, commentaries and writings remained sparse in their treatment of the questions involved.Footnote 95
A recent case highlights just how much the timing rule connects with other areas of law. The case concerns Ashley Mote, a Euro-sceptic and once the MEP for the South East of England. Mote's story is complex but essentially he was challenging findings of social security fraud made against him. Chichester District Council ceased benefits payments to the defendant because of his apparent fraud. They re-evaluated Mote's entitlements and found that overpayments totalling about £67,000 were recoverable from him. Mote appealed the District Council's decision to the Social Security Appeals Tribunal (SSAT) but while that was pending, a criminal prosecution for fraud in respect of the same benefits began. The District Council sought to stay Mote's appeal to the SSAT in the light of the criminal prosecution but the SSAT refused. The SSAT ultimately dismissed Mote's appeal in 2004, reasons being given in 2005. Mote appealed the SSAT's decision to the Social Security Commissioner; the Commissioner dismissed the appeal in 2006. Mote then appealed to the Court of Appeal; that appeal was dismissed in 2007. What takes this case out of the mundane is that from 2004 Mote was a Member of the European Parliament. The potential immunities associated with this status led to the criminal prosecution being stayed until the Attorney-General had sought a resolution from the European Parliament that any immunity which did apply was waived. Such a resolution was made in 2005. On October 15, 2008, the Court of First Instance dismissed Mote's application for annulment of that resolution.Footnote 96
The case is interesting for present purposes because of the way Mote's case was argued before Court of Appeal in 2007. One ground was that the SSAT should have stayed its proceedings given the ongoing criminal prosecution. In the Court of Appeal's dismissal of the case they focused on the risk of injustice and unfairness to the defendant to the criminal prosecutionFootnote 97 and covered both civil and criminal law perspectives on the use of a stay of proceedings. The court forcefully dismissed the additional submission that the Human Rights Act 1998 required a stay if the defendant's rights, of unstated origin but presumably under Article 6, under the European Convention of Human Rights were in jeopardy.Footnote 98 A further argument from Mote's counsel was particularly novel but also unsuccessful: that the civil trial afforded the local authority a chance to rehearse its arguments for the criminal prosecution.Footnote 99
II. Two shifts in Timing
These phases highlight two surprising shifts in the history of the timing rule: why a means to enforce the rule was lacking for so long before 1914 and then why the rule was removed in 1967 only to be resurrected in 1979.
A. Enforcement before 1914
It is odd for an idea to have permeated legal thinking for three hundred years but for that idea not to have included a means of expression in practice. There are three key issues: why the law did not develop a means to enforce it before 1914, why there was a change in 1914 and why that change affirmed the rule and select the stay of proceedings as the remedy.
1. Why did the law not develop a sanction before 1914?
First, it must be acknowledged that the timing rule rarely needed enforcing in the courts. Judging by appellate cases, timing rule disputes were a steady trickle only from the 1800s.Footnote 100 In addition, earlier cases had tended to hold that the rule had not been engaged, so, surprisingly enough, the question of what sanction was appropriate had not needed answering. The rarity of cases is partly a factor of most defendants not being worth suing unless there was identifiable property involved. However, enough cases did arise that some means of enforcement was in fact debated and attempted in a couple of cases before 1914. The slow development of cases might also have been as much a result of what lawyers thought the rule was as what it actually was. Even when the timing rule was in doubt, there were clearly still counsel who were willing to argue it; as is often the case with uncertain rules, few would want to test the matter in court even though they themselves did not believe in it. Sometimes calling upon the rule would seem like a last resort of those with little other hope, as exemplified most recently by the Mote fraud saga. There were also other reasons behind the scarcity of cases, but many of them, like the difficulty of bringing small claims before the County Courts Act of 1846,Footnote 101 applied across the board rather than just in respect of the timing rule.
Second, there were practical reasons which explain why the background felony might not be raised in the civil action. The plaintiff would not be interested in raising it. The judiciary even encouraged careful drafting of pleadings to clothe felonious facts in the garb of misdemeanours.Footnote 102 Dressing down a claim was certainly easier where there was a ladder of offences and the civil claim could be linked to a lower level offence, such as assault rather than rape. Therefore either the defendant had to raise the felony, or the court would need to do so of its own motion.
The defendant's ability to set up his own felony in defence to an action of trespass was doubted from early on, such as in Markham v Cobb in 1625 and Lutterell v Reynell in 1670.Footnote 103 Even if the defendant could raise it, as certainly some defendants did, he must describe the plaintiff's claim as serious enough to require prosecution, but implicitly to deny the felony otherwise his admission of committing the felony might be evidence in any later prosecution or revived civil action. While this is a plausible distinction, it can sound artificial on the facts. It is conceivable that a defendant might raise the timing rule as a way to tie up the litigation beyond the means of the plaintiff to carry on, but there is no reason why the courts should have sanctioned this if they were aware of it.
The final possibility was that the judge might raise the question of the felony. It seems likely that a judge at Nisi Prius, where many, perhaps most, potential timing cases would have been heard could not have raised the background felony himself: once a judge at Nisi Prius had a case before him he was a commissioner to try the issues on the record, not to raise or deal with any other points.Footnote 104 Such a judge could only refuse to try the case or leave it to the court in banc: either option would have delayed the case very effectively. After the Judicature Acts 1873–75, civil claims that might breach the timing rule would have been brought before the High Court where a judge or master might theoretically act to enforce the rule.
Ultimately judges sought and selected a remedy which they could use without the parties asking for it.Footnote 105 However, once the stay of proceedings was established as the means to enforce the rule, the issue of pleadings became even more important: the stay would be decided in summary proceedings without all the evidence necessarily being presented.
Third, the timing rule's means of enforcement was bound up with the substantive shape of the rule itself. At first, when the rule was conceived of as a trespass drowning in the felony, the civil claim would either not be brought in the first place, or could just be dismissed.Footnote 106 However, from the start of the mere suspension of the civil action, Dawkes v Coveneigh in 1652 perhaps but certainly Crosby v Leng in 1810, a way to carry out that suspension might be needed. Even though a stay of the proceedings had first been proposed by Cockburn CJ in 1872Footnote 107 it was not adopted for another 42 years. The lack of enforcement mechanism also persisted because the timing rule developed sufficient flexibility to filter out cases of sufficiently minor criminality to avoid influencing the civil case, such as where the defendant was not the felon.
The fourth explanation for the lack of a sanction for the timing rule is connected with the victim's role in the state's system of criminal justice. There were two angles from which the state urged the victim to aid it: forfeiture and initiating prosecutions. These were probably also the reasons behind the timing rule's first form, that of full merger. During the nineteenth century both changed significantly.
Until 1870 a convicted felon forfeited all his property to the Crown, including any not related to the crime. A civil claim before a prosecution therefore risked diminishing the felon's property to the disadvantage of the Crown.Footnote 108 However, enforcement of forfeiture was on the wane well before the Felony Act 1870 which formally removed it: it was practically unused in the nineteenth century.Footnote 109
Overlapping with forfeiture was the state's interest in ensuring prosecutions, even without any benefit by forfeiture. This “public policy”Footnote 110 typically meant requiring the victim to prosecute. At least until the 1850s, the vast majority, perhaps 80 per cent., of prosecutions were undertaken by the victims of crimes, many others by those acting on his behalf.Footnote 111 The obligation to prosecute was enforced in a number of ways.Footnote 112 First, failure to communicate to the proper authorities one's knowledge of a felony may have been a crime, the misdemeanour of misprision of felony. Second, agreeing not to prosecute a crime (certainly all felonies and perhaps misdemeanours) constituted the misdemeanour of compounding a felony.Footnote 113
Prosecuting was a heavy burden. The expense, as well as the time and effort, were significant reasons why some crimes were not prosecuted.Footnote 114 While some of the expenses began to be paid from 1752, they varied from county to county and were often incomplete.Footnote 115 Victim-driven prosecutions had been preferred even into the nineteenth century despite awareness of these drawbacks. British subjects preferred to be bound by obligations to prosecute rather than be at the mercy of a public prosecutor.Footnote 116 Therefore it is not surprising that the movement towards state sponsored prosecutions really began with the new professionalised police force.Footnote 117 They were the successors to the local constables who had been involved in prosecutions in the past and it seemed a logical extension of their role in preventing crime.Footnote 118 In addition, police involvement grew slowly: they began more by facilitating the private prosecutions, such as by serving summonses and enforcing appearances,Footnote 119 only later taking on all aspects of the prosecution. Gradually the roles reversed and constables took the lead; eventually they even brought victims before magistrates to be bound over to prosecute.Footnote 120
It was somewhere between 1850 and 1880 that the police constable became the dominant prosecutor.Footnote 121 In 1869, 83,582 offences were proceeded against in London; in 72,951 of these cases, the police were involved as arresting officers, and in a number as prosecutors as well. Only 11,631 were the result of private summonses.Footnote 122 Certainly by 1880 the private prosecutor was in decline and the “policeman-state” took over.Footnote 123
The decline in both these justifications of the rule maps onto the development of the timing rules.Footnote 124 In particular, it was during their decline in the nineteenth century that significant evolution of timing rules took place. First, in 1810 in Crosby v Leng the “merger” rule became a rule of suspension, rather than drowning, though admittedly the condition precedent approach of Dawkes v Coveneigh in 1652 was not that different. Second, it was particularly property and fraud cases in the mid-1800s which denied a strict condition precedent for the civil action,Footnote 125 rather that there should not be a compromise or collusion to frustrate the prosecution. Third, the earliest legislative rejection of a timing rule took place with the 1846 the Fatal Accidents Act which specifically excluded the operation of the rule from the ambit of that Act.Footnote 126 While causality is hard to establish, the decline in both justifications provides some explanatory power. For instance, the second justification, the policy of promoting prosecutions, continued after forfeiture's removal in 1870 and could have been the only justification for the application of the timing rule in Smith v Selwyn in 1914, though by then even that was doubtful.Footnote 127
The judiciary must have been aware both of the decline of forfeiture and the changes in prosecution on the ground and they shifted their reasoning accordingly. Judges in the twentieth century have occasionally referred to this shift, at least in highlighting how the timing rule was illogical when private parties no longer prosecuted.Footnote 128
Similarly, plaintiffs may have feared a misprision of felony or compounding a felony charge. In effect, if a case openly referred to a felony, the plaintiff risked admitting to a misdemeanour charge unless he swiftly brought an indictment of felony. Timing was quite a technical argument and the timing cases which came up involved counsel on both sides who would have known and explained this risk to the plaintiff. Alternative modes of redress might therefore have been favoured.Footnote 129 It must be acknowledged that our understanding of the reality of a misprision charge is limited. It has been carefully argued that the offence was a phantom rather than a reality, at least before the seminal House of Lords case of Sykes v DPP in 1961.Footnote 130 Nonetheless, enough legal actors believed in the offence throughout our period that its potential effect on cases should be noted. As private prosecutions declined, both in practice and in court rhetoric, so too would any fear of those misdemeanours.
2. Why was there change in 1914?
The question, then, is why a stay of proceedings was adopted in 1914. Some change was understandable by the end of the nineteenth century. By then the procedural difficulties in timing coming before a court had been eased: the Judicature Acts freed trial judges to intervene from 1876. The substantive shape of the rule, suspension rather than merger, called for a means of enforcement from 1652, or 1810 at the latest. The background policy motivations were in decline: forfeiture in practical terms from the start of the nineteenth century and formally from 1870; private prosecutions from the 1850s. Finally, the last reported English case on timing, Appleby v Franklin, was in 1885 so the primary mechanism for legal change fizzled out after a frenetic 75 years. Explaining why it then took thirty years until Smith v Selwyn in 1914, and even why Appleby v Franklin followed the earlier cases, may not be possible. Just because the reasons for a situation fade away, that does not mean that legal change will follow immediately. Perhaps sufficient time needed to pass for counsel and judges to appreciate the decline in the procedural, substantive, policy and mechanical reasons why there had not been a means to carry out the rule. Paradoxically, it might also be that enough time was needed to forget the context of past decisions and effectively start afresh.
3. Why was the merger rule affirmed and a stay of proceedings adopted in 1914?
In 1914, the Court of Appeal in Smith v Selwyn faced a defendant validly raising the timing defence. It was a point of legal change and one which could, quite possibly, have led to the removal of the timing rule as no longer being necessary or important. In fact, the rule was affirmed and given expression. Perhaps the idea of timing was too embedded in the legal reasoning of counsel and the Court of Appeal. It may also be that the court's ex tempore judgement did not leave sufficient time to reflect on how 1914 was different to 1885.Footnote 131 Conceivably not enough time had passed for them to envisage the legal system without a back-up timing rule for difficult cases. Perhaps they had not considered whether the rule could be dispensed with entirely. In a sense, the Court of Appeal tried to avoid facing up to the content and operation of the timing rule even when they first gave clear expression to it. While the granting of a stay was phrased as a duty, to be applied in all cases of felony, the Court retained the exit of the plaintiff re-arranging the pleadings so as to avoid referring to the felony. While theoretically the Court had no discretion, they would only have to give expression to the rule when the plaintiff's pleadings absolutely forced them to do so.
B. Removal and Resurrection: 1967–1979
By 1967 the situation was different. On the one hand, as in 1914, all the reasons why no means of enforcing the rule had been needed had faded away. In particular, the two policy reasons for having the rule at all were long dead: private prosecutions were insignificant in enforcing the criminal law by the 1960s and forfeiture was long gone. However, much more importantly, by 1967 enough time may have passed that those policy reasons were distant and anachronistic concerns. Contemporary legal actors, not just in the legislative process, acted as if the rule had no value to them and did not look in much detail to its past. The 1960s criticisms of the rule were the same as the forceful academic disapproval in the 1880s and 1890s but the earlier disapproval was not referenced.
However, stepping forward in time rather than back, the abolition of the rule in 1967 played a key role in its 1979 reboot. First, the CLA 1967 removed the formal rule and further obscured its previous rationalesFootnote 132 so when a new rule was instituted in Jefferson v Bhetcha it could set out from an entirely new justification.Footnote 133 This new power was also based on completely technical grounds, never before used for this purpose. A discretionary stay would thereafter be granted where necessary to protect the fairness of the criminal proceedings.
Second, the solution adopted by the Court of Appeal in Jefferson v Bhetcha was linked to the earlier jurisprudence. The court were cited Smith v Selwyn and Wells v Abrahams and a key section of the argument and Megaw L.J.'s judgment turned on Wonder Heat v Bishop, a case which went into the earlier jurisprudence in detail. The perceived problem facing the court, a civil action coming before a criminal one, had not changed since those cases and the Court of Appeal could not have thought it had. If the Supreme Court of Judicature (Consolidation) Act 1925, s. 41, had been available since 1925, why was that route to a suspension not used before 1979? In fact, the same provision can be found in the Supreme Court of Judicature Act 1873, s. 24(5), so it could had been available to ground a timing rule for a hundred years. Such statutory support had not been felt necessary to the Court of Appeal in Smith v Selwyn, public policy being enough for them. It turns out that CLA 1967 had not only wiped away earlier rationales but also reduced the willingness to found rules on such general justifications as well. None the less, the problem had not changed and a statutory power in a Statute first enacted in 1873 was commandeered for the purpose of creating a new timing rule. By selecting a new solution to an old problem the Court of Appeal were continuing a journey begun back in 1607, even if they did not acknowledge it.
This is also a clear example of the views of legal actors shaping the law. In Jefferson v Bhetcha, Megaw L.J. doubted the principle that a civil defendant should not be forced to disclose his defence to later potential criminal proceedings. That idea had been supported by Pape J. in the Supreme Court of Australia, by Forbes J. at first instance and by counsel for the respondent defendant before him, that is, Megaw L.J. therefore doubted the beliefs about the timing rule held by other legal actors; beliefs which had been shaping legal outcomes on the ground. But for the belief of a judge, supported by a somewhat obscure reference to an Australian case, English law might not have created a discretionary stay of civil proceedings when it did. All this was apparently to protect the defendant but only when absolutely necessary.
What is surprising is that a justification which did not save the rule in 1967 should be enough to revive it in 1979. The pro-defendant approach to the timing rule did not appear before 1979. The CLRC Report did contain a throwaway line about the possible prejudice to a felony trial as one reason to suspend a parallel civil case,Footnote 134 but there was no evidence they took this position specifically to aid the defendant. Wonder Heat v Bishop had been decided in 1960, but may not have been well known in England. Perhaps the residual belief in some form of timing rule was floating free in the subconscious of legal actors and the defence of the defendant was the first viable idea to come along.
However, the rule was also returned to a very different setting from the one it left. By 1979 a number of other interfaces of tort and crime had changed. For instance, one area of difficulty with the timing rule was that evidence for the civil action might go stale, witnesses might die or become unavailable and the case generally would be harder to prove.Footnote 135 From 1968, plaintiffs could use a criminal conviction to assist their civil case by admitting it as evidence of the facts upon which the conviction was founded. This reform, expressed in ss. 11 and 12 of the Civil Evidence Act 1968, was driven by events in the 1960s, with the report from the Law Reform Committee which led to the 1968 Act submitted in 1967.Footnote 136 To take a second example, having to wait to bring a civil claim made the practical burden of the loss greater as the loss would go unremedied for longer. From 1972 criminal courts had a general power to order a convicted defendant to compensate the victim of a crime. While this power was probably not well used at least until the late 1980s, it may have assisted some civil claimants, particularly for smaller sums of money. From 1964 the Criminal Injuries Compensation Scheme also provided some compensation to such victims. Similarly, somewhat enhanced powers to order the return of stolen goods had also been enacted by the Theft Act 1968.Footnote 137 These background changes make the operation of a reintroduced a timing rule less onerous than had been the case at the time of Smith v Selwyn.
III. Impact of the Timing Rule
A. Criminal Law
The criminal law has paid only passing regard to what the civil courts did with the timing rule. As a matter of fact, neither criminal nor civil courts appear to have monitored the effect of the timing rule on the criminal law. It is true that tracing whether particular criminal proceedings had been furthered or protected by the civil stay might be difficult, but it is odd that the question seems not to have been asked.Footnote 138 Modern examples of discussion within the criminal law are rare. One instance is Professors Smith and Hogan, in their textbook on Criminal Law, discussing the rule briefly in 1965.Footnote 139 Similarly, the Hodgson Report on Profits of Crime only tangentially noted the rule in 1984, suggesting that judges did not support it, highlighted its link to forfeiture and argued that the rule could have inhibited the creation of new felonies.Footnote 140
Courts and commentators even had little awareness of similar substantive rules in the criminal law. From at least the middle of the nineteenth century criminal courts have had certain parallel powers to require a litigant to drop a civil proceeding that had already been begun before he could commence criminal proceedings.Footnote 141 More importantly, the criminal law has also had rules which have required courts to deal with a theoretically more serious offence before any alternative charges. This came in the form of two familiar sounding rules: that felony drowns in treason and that a misdemeanour merges in a felony. In the first case the criminal courts would acquit of the felony if the evidence suggested treason, and the defendant would be re-tried under the higher charge. This was because the public interest outweighed the ease of a prosecution for a lower offence.Footnote 142 There had also been a “merger” rule for misdemeanours in felonies until 1851.Footnote 143 A “misdemeanour” was merely the criminal law term for a trespass, so this would make some sense.Footnote 144 On some occasions a misdemeanour would be charged in place of a complex or difficult to prove felony.Footnote 145 This happened particularly where the prosecutor was uninterested in bringing the felony charge, or else he would have done so already; in contrast to a tort claim, a defendant would not usually claim that he should be on trial for a felony rather than the misdemeanour.Footnote 146 It is unclear how much these rules were used but they kept pace with developments in the civil rules.
B. Tort Law
The timing rules have been a disincentive to pursue civil remedies for particular torts. In its first two phases the rule channelled fact patterns into the criminal law. In addition, there is an argument that one particular area of tort law, civil actions after death, has been strongly affected by a misapplication of the original “merger” rule. In Baker v Bolton, Lord Ellenborough held that a husband could not bring an action for damages for the loss of the society of his wife or for mental suffering on her account after her death: “In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff's wife, must stop with the period of her existence.”Footnote 147 Holdsworth in particular has argued that the Crown's eagerness for property on forfeiture led to both the merger rule, and through that rule, to the view of judges like Lord Ellenborough.Footnote 148
The Ellenborough view is sometimes conflated with the maxim actio personalis moritur cum persona: that the personal representative of a deceased victim of a tort cannot bring an action in place of the deceased for the tort that caused death. Lord Ellenborough's dictum, taken as authoritative ever since, covers the same ground as this maxim. However, it also effectively made death a wrong which could not be complained of, even where the plaintiff was not the deceased. Nevertheless there will only rarely be a class of person who could claim to have suffered loss by the death of another. Dependents lose financial support but from 1846 the Fatal Accidents Acts would have allowed recovery for many.Footnote 149 Otherwise employers might attempt an action, but most others could not. Eventually the actio personalis rule was effectively removed by the Law Reform (Miscellaneous Provisions) Act 1934,Footnote 150 but the effects of the common law can still be felt: for example, when the Advisory Council on the Penal System were reporting in 1970 on compensation in the criminal courts they argued that there should not be a power to compensate for a death, since there was no right of action at common law.Footnote 151
IV. Conclusion
For over four hundred years the common law has had to decide whether to interfere in a civil action brought before a criminal prosecution on the same facts had been initiated. There were three phrases in the regulation of this question of timing: 1607 to 1914, 1914 to 1967 and from 1967 to today. This paper has taken the view that there is a thread of deference to the criminal law running throughout. At each stage courts and legislators were aware of at least the key aspects of the earlier jurisprudence, even if their published reasoning does not delve deeply into it. In cases, particularly the key decisions of 1914, 1967 and 1979, Counsel argued for, and judges came to accept, the need for a timing rule of some kind. Cases have tended to be un- or barely reserved decisions. Judges have expressed belief in some kind of timing rule without clearly expressing why while commentators have played little to no role in the development of the rule.
In addition, the phases show that timing rules intervened less and less in the civil action. The first timing rule saw the full merger rule of the two actions and the extinction of the civil claim but that was soon weakened to one setting out a condition precedent. From there the timing rule focused on the duty of the injured person to vindicate the public interest. After a brief hiatus there was a discretionary stay that would only be exercised rarely. If there is no thread running through the various rules addressing parallel actions, it is surprising that there would be such a steady liberalising trend, leading from the merger of the civil claim at one end to very rare stays at the other. Certainly the need for some sort of rule survived for centuries, much of that time without a clear sanction for its breach. The underlying problem was not solved by statutory assassination of one rule so a new rule grew into the resulting void. During its life it has been fuelled by a number of mutually exclusive justifications, but their interrelationship has almost never been discussed.
However, there is another view. It could be argued that each rule was distinct and stands alone. For instance, it might be said that the merger rule wiped out any civil claim completely and thus cannot be said to be linked to later rules allowing such claims in certain circumstances. This line of reasoning would see any common thread as certainly cut by the CLA 1967: the Jefferson v Bhetcha use of the Supreme Court of Judicature (Consolidation) Act 1925, s. 41 and the later adoption into the Civil Procedure Rules is thus a modern solution to a practical problem.
That two opposing approaches to the development of the case law could both be plausible is a sign of how difficult it is to start to understand the overlaps and undercurrents between tort and crime. Nonetheless, the relationship between parallel civil and criminal court proceedings in English law provides material and raises important questions about how English law has dealt with the boundary between tort and crime in general. It is one instance of a larger border dispute that has been bubbling away in the courts and legislature for centuries. There are great practical implications depending on where the tort/crime border is and it is time to face up to them. This article has argued that a logical first step to understanding the relationship between tort and crime is to build up a picture of how they have been co-ordinated until now. There is much to learn. Many of what are thought to be novel arguments now can be traced back to other points in the history of the relationship and there is a wealth of material on the outcomes of those arguments waiting to be explored.
The default belief in the last 150 years, if it existed, has been that it would cause confusion for one branch of the law to consider the substantive law of the other.Footnote 152 Sometimes this reluctance is manifest in a complete “decoupling” of the tort and criminal law rules.Footnote 153 At other times, it results in a rule of tort or crime sitting in a different place on a sliding scale.Footnote 154 The common law tradition of noting difficult questions but not answering them remains alive in the borderline of tort and crime.Footnote 155
This is all in stark contrast to our continental neighbours. The Spanish legal system, for instance, is arranged to simplify the relationship between civil and criminal law. In particular, it channels civil claims into the criminal legal process, hence a common name for it “ex delicto”, that is, civil liability from a crime. Therefore, it is not only a question of the civil action pre-empting the criminal, but of a civil action being brought separately and out of the normal order. As a consequence, the Spanish suspension rule will be needed less.Footnote 156 When it is used the Spanish suspension rule exists to prevent conflicting decisions.Footnote 157 This is a rationale that English lawyers have not even discussed.Footnote 158
Two examples of modern cases on the edges of tort and crime were given at the start of this article: a requirement for permission to bring a trespass to the person claim based on events that led to the defendant's conviction for an imprisonable offence and the application of ex turpi causa to a claim damages for being in prison. Looking at these again in the light of a deeper understanding of the timing rule reveals further layers. On the one hand, it is suddenly more surprising that in 2003 Parliament would seek to impede civil actions for assault after a conviction when there was no longer a rule requiring the criminal proceedings to come first.Footnote 159 On the other hand, it is more understandable that the defence of ex turpi causa non oritur actio was not seen in tort law until the late twentieth century since timing rules would have prevented felonies from giving rise to tort actions until 1870 at the earliest.Footnote 160 These are just two examples of legal development being affected by the interfaces between tort and crime.
The points of contact between tort and crime are not isolated incidents: they feed into and are fed by the disputes within tort law and criminal law. They are crucibles where the procedure, substance as well as policy of tort law and criminal law react. By understanding such places, we can learn more about tort, crime and the development of legal systems in general.
