Guilt: the difference between criminal and civil “convictions”

Royal Courts of Justice

There’s been an argument between police officers and lawyers over the past couple of days on Twitter over whether an acquittal means somebody is actually innocent versus whether a conviction means somebody is actually guilty. In law the position is quite clear, if you are convicted you are guilty; if you are acquitted you are innocent (you may already be shouting at me that “not guilty” does not equate to innocent but you are wrong – everybody is presumed innocent until convicted. If you are not convicted, then you are innocent in law thus a finding of not guilty maintains a defendant’s innocence and you can properly say that a person found not guilty is innocent).

One of the more interesting points raised in the police v lawyer debate is that a person can be acquitted in a criminal court but convicted in a civil court. I think it’s an argument that is strong on its face but when looked at in more detail is quite weak. So, it’s worth exploring in a little more detail than Twitter provides.

First, civil courts do not make findings of guilty or not guilty as criminal courts do. Instead they look at whether a civil wrong has occurred and decide whether a person is liable for that wrong. Thus, a person could be found to have committed the civil wrong of trespass to the person or to have breached a contract and so on.

What are the major differences between a criminal and a civil trial?

First, criminal courts try specific criminal offences that are defined, usually by Parliament, and that have specific elements that must be proven, e.g. rape is an offence defined by section 1 of the Sexual Offences Act 2003 whereas in a civil court it would be tried as an assault and battery and possibly as a false imprisonment, which have their own distinct definitions. So, we can see that from the very start we are potentially trying offences/wrongs that have distinct definitions in law and thus different elements to be proven.

Once you’ve worked out what needs to be proved you’ll need to work out what the standard of proof is. In the criminal courts, the standard of proof is commonly said to be “beyond reasonable doubt” while in the civil courts it is “on the balance of probabilities”. What does that mean in practice? It means that at a criminal trial, the jury must be sure that a person is guilty but in a civil court the judge only needs to think that the claimant’s version of events is more likely than not, i.e. 51% likelihood that the claimant is telling the truth is sufficient for a finding against the defendant.

There’s a good reason for the difference in standards of proof, in the civil courts if you lose all you face is a bill for damages. But, if a criminal court makes a mistake then the defendant will feel the repercussions for a long time, maybe even for the rest of their life. For example, I had a consultation with a client recently who works in finance, she is accused of drink driving, my speciality and a relatively minor criminal offence, but if convicted she will be sacked. As she is working in the UK on a Tier 2 visa there is also a real risk that she would have to leave the UK, her home for most of her adult life. In more serious cases, a wrongfully convicted defendant may face a life time in prison or on licence after release. These are very serious consequences and should only occur when we are very sure that somebody has done something deserving those consequences.

There is a third major difference to consider: evidence. The law of evidence developed over many centuries of legal argument to regulate trial by jury; however, with the removal of juries in almost all civil courts those rules of evidence have been relaxed to a very significant degree.

Hearsay is a great example. Hearsay is a statement not made in oral evidence in the proceedings that is evidence of any matter stated. In other words, it is a statement that seeks to prove something without a witness actually standing in court and giving the necessary evidence. Let’s imagine that Laura sees Sophie murder Myleene. Laura could give evidence saying what she saw. However, if Laura tells Keeley that she saw the murder then Keeley gave that evidence it would be hearsay because she would effectively be giving Laura’s evidence without Laura being called to give oral testimony. In a civil court that would be acceptable; however, in a criminal court it would be inadmissible unless the prosecutor could find a hearsay “gateway” to allow the evidence to be given. Even if admitted the defence would be able to rely on section 78 of the Police and Criminal Evidence Act 1984 to exclude the statement as being unfair to the defence because they would have no way of challenging it in court.

Why are the rules of evidence so much laxer in civil courts? The answer lies, I suspect, with the fact that nearly all civil trials are conducted by professional judges who can be “trusted” to place the correct weight on different types of evidence. Also, there is no risk of a defendant in civil proceedings being imprisoned. Finally, in criminal cases there is a large imbalance between the investigatory powers of the prosecution and defence, which does not exist (in theory at least) in civil proceedings.

In conclusion, we can confidently say that while somebody may be “convicted” in a civil court after acquittal in a criminal court there are many reasons for that, first the issue being tried is likely to be different in the civil court compared to the criminal one. Secondly, the standard of proof is far lower in the civil courts thus making a finding against a defendant more likely. Finally, the rules of evidence are far more relaxed in civil courts because there is no risk of a defendant being imprisoned.

While it may be tempting to say that a finding against somebody in a civil court shows that they were guilty all along that is to overlook the very significant differences between a civil court and a criminal one.