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THE TIMING OF TORTIOUS AND CRIMINAL ACTIONS FOR THE SAME WRONG

Published online by Cambridge University Press:  20 March 2012

Matthew Dyson
Matthew Dyson*
Affiliation:
Fellow of Trinity College, Cambridge.
*
Address for correspondence: Dr Matthew Dyson, Trinity College, Cambridge CB2 1TQ. Email: [email protected]
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Abstract

This paper traces a key example of the overlap between tort and crime and explains the impact of how disjointed English legal thinking has been. 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” though a more neutral term would be a “timing rule”. The development of the timing rules casts light on how English legal reasoning has approached the relationship between the victim and the state, the procedural context of substantive rules and the impact rules in one area of law can have elsewhere.

Keywords

Criminal procedurecivil procedurelegal historytortSpain
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Articles
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The Cambridge Law Journal , Volume 71 , Issue 1 , March 2012 , pp. 86 - 117
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Copyright © Cambridge Law Journal and Contributors 2012

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References

1 See, e.g., René Demogue, De la Réparation Civile des Délits (Paris 1898) and Phillipe Bonfils, L'action civile, essai sur la nature juridique d'une institution (Aix-en-Provence 2000).

2 See, e.g., Lapie, P. O., “The Partie Civile in the Criminal Law of France” (1928) 10 Journal of Comparative Legislation and International Law (3rd Ser.) 33Google Scholar; Larguier, Jean, “Civil Action for Damages in French Criminal Procedure” (1964–1965) 39 Tulane Law Review 687Google Scholar.

3 See, for a general introduction to the present position, Gonzalo Quintero Olivares and Josep María Tamarit Sumalla, “De la responsibilidad civil derivada de los delitos y faltas y de las costas procesales” in Gonzalo Quintero Olivares (ed), Comentarios al Nuevo Código Penal (Cizur Menor, Navarra 2005).

4 See s. 329(2) of the Criminal Justice Act 2003.

5 Adorian v MPC [2009] EWCA Civ 18; see also J. R. Spencer, “Legislate in haste, repent at leisure” [2010] C.L.J. 19. See also Ashley v Chief Constable of Sussex Police (Sherwood intervening) [2008] UKHL 25; [2008] 1 A.C. 962 where the House of Lords refused to strike out a claim in trespass for a police force killing an unarmed suspect based on a defence of self-defence.

6 The maxim ex turpi causa and a line of reasoning based on maintaining the dignity of the criminal conviction would apply to defeat a claim for loss of earnings and general damages where a train accident victim, suffering from post traumatic stress disorder, committed manslaughter: Gray v Thames Trains [2009] 1 A.C. 1339 on which see Goudkamp, J., “The defence of illegality: Gray v Thames Trains Ltd” (2009) 17 Torts Law Journal 1Google Scholar and cf. Pitts v Hunt [1991] 1 Q.B. 24, 39 per Beldam L.J.

7 Bedfordshire Police Authority v Constable [2008] EWHC 1375; [2009] Lloyd's Rep. I.R. 39: concerning the Riot (Damages) Act 1886 and the insurability of the Police Authority's liability for the riot at the Yarl's Wood Detention centre in 2002.

8 Wong v Parkside Health NHS Trust and another [2001] EWCA Civ 1721; [2003] 3 All E.R. 932 concerning the bar to a later civil action or prosecution after a summary conviction for assault contained in ss. 44 and 45 OAPA 1861. This was last tinkered with by the Courts Act 2003 c. 39 Sch.10 para.1 (April 1, 2005 as SI 2005/910) but cf. the contemporaneous s. 329 (2) of the CJA 2003. See also H v B [2009] EWCA Civ 1092 cf. The Ministry of Justice (sued as the Home Office) v Jason Samuel Scott [2009] EWCA Civ 1215 on who constitutes the prosecutor for the purposes of a suit in malicious prosecution. There are ambiguities in recent statutory provisions too, see e.g., the Regulatory Enforcement and Sanctions Act 2008 and the examples of its operation given by Wells, Celia, “Corporate crime: opening the eyes of the sentry” (2010) 30 L.S. 370, 373–374Google Scholar.

9 Sometimes such actions are against peripheral participants in the crime, such as banks whose employees are involved in fraud. The actions might also seek to take advantage of insurance, more beneficial civil rules of evidence and procedure or to force a defendant to return or pay the equivalent in value of specific property.

10 See generally, Seipp, David J., “The Distinction between Crime and Tort in the Early Common Law”, (1996) 17 Boston University Law Review 59Google Scholar; James Barr Ames, Lectures On Legal History and Miscellaneous Legal Essays (Cambridge M.A. 1913), Ch. II, III and IV.

11 In this period there is strong evidence that the two actions were independent: Glazebrook, P. R. “The Merging of Misdemeanours” (1962) 78 L.Q.R. 560, 561Google Scholar, esp. note 12; James Barr Ames “Substantive Law before the time of Bracton” in Lectures on Legal History (Cambridge 1913), 45–46; Hudson v Lee (1589) 4 Co Rep 43 a; 76 E.R. 989 (KB) 989–990 where it appears that an action at law had been maintained for what must have been a felony. Lord Parker once defined a trespass as an act other than a felony: Amerika Commissioners v SS Amerika [1917] A.C. 38, 44–46. Lord Parker referred to Maitland, but did not cite specific works. Maitland does say that “Remember that throughout the Middle Ages there is no such word as misdemeanour – the crimes which do not amount to felony are trespasses”: F. W. Maitland The Forms of Action At Common Law (Cambridge 1948), 49 and see also 65. Lord Parker's view could perhaps refer to the time before the creation of the merger rule.

12 The Midland Insurance Co. v Smith (1881) 6 Q.B.D. 561, 568. A number of cases are missed out, but the basic pattern is valid.

13 Higgins v Butcher (1607) Yelv. 89; 80 E.R. 61, 61 that the felony “drowns … the private wrong.” On this claim see, e.g., W. S. Holdsworth, History of English Law (London 1923), vol. iii, 331–333.

14 See Charles K. Burdick, Burdick's Law of Torts (Albany N.Y. 1926), at [36] and P.H. Winfield, A Text-Book of the Law of Tort (London 1937), 168 discussing two other approaches: “resurrection” and therefore immunity to civil suit after attainder and the felon being the “human property” of the Crown so not liable. Winfield, p. 170, also noted that in Higgins v Butcher neither plaintiff nor defendant had died and that the merger should in any case mean suspension.

15 Markham v Cobb (1625) Jones, W 147; 82 E.R. 79, which was the case Blackburn J. cited as the root of the trespassing merging in a felony rule: Wells v Abrahams (1872) L.R. 7 Q.B. 554, 560–561. See also the general dicta in Cooper v Witham (1669) 1 Sid. 375; 82 E.R. 1166.

16 The case ends with the helpful comment: “Quaere bien, car est un point de grand consequens de l'un part, & del' auter” which could be rendered as “Query well, for it is a point of great consequence for one party and for the other”.

17 Dawkes v Coveneigh (1652) Style 346; 82 E.R. 765, 766 where the action was maintainable after conviction. The defendant had received benefit of clergy and so still had property. Hale used the case, along with Markham v Cobb, to require felonies to be “healed” before trover could be bought: Sir Matthew Hale, The History of the Pleas of the Crown (London 1736), 546–547. Cf. William Blackstone, Commentaries on the Law of England (Oxford 1765–1769), vol. 4, 6 who did not give authority but stated that “the private wrong is swallowed up in the public: we seldom hear any mention made of satisfaction to the individual; the satisfaction to the community being so very great”, the noting that forfeiture would make it impossible. A little later Lord Somers proposed that: “It shall not be lawful for any person who shall have goods feloniously taken away, to bring any civil action for the recovery thereof, or for damage for the same, before he have proceeded criminally, with effect, against the offenders; but that he may bring his action after such effectual prosecution.” Walter Scott, A Collection of Scarce and Valuable Tracts particularly of Lord Somers, 2nd ed. (London 1811), vol. vi., 239.

18 Lutterell v Reynell (1670) 1 Mod. 282; 86 E.R. 887, 283.

19 Dawkes v Coveneigh (1652) Style 346; 82 E.R. 765, 347 and Lutterell v Reynell, note 18 above, 283. The movement away from the drowning position was relevant where the Crown's allowed a wealthy felony to compound for his felony, paying a significant sum but also often retaining enough to be worth suing.

20 Cf. Gibson v Minet (1791) 1 H. Bl. 569; 126 E.R. 326, 336 per Perryn B. who restated the merger rule, with Master v Miller (1791) 4 T.R. 320; 100 E.R. 1042, 1048–1059 where Buller J. expressly declines to rule on a future civil action's validity. Finally there was Whitfield v Lord Despencer (1778) 2 Cowper 754; 98 E.R. 1344 where counsel on both sides agreed on a merger rule, but counsel for the plaintiff argued that the servant's felony should not suspend the action against the master, see 758 and 761.

21 See, e.g., Maule J. doubting the duty to prosecute but using arguments at odds with traditional reasoning; Ward v Lloyd (1843) 7 Scott N.R. 499, 507, a case of alleged conspiracy of felony: “It has been said that it was the plaintiff's duty to prosecute. It would be a strong thing to say that every man is bound to prosecute all the felonies that come to his knowledge, and I do not know why it is the duty of the party who suffered the felony to prosecute the felon rather than that of any other person; on the contrary, it is a Christian duty to forgive one's enemies, and I think he does a very human and charitable and Christian-like thing in abstaining from prosecuting.” Interestingly those words do not appear in the report in (1843) 6 Manning and Granger 785; 134 E.R. 1109.

22 Crosby v Leng (1810) 12 East 409; 104 E.R. 160, 161. Lord Ellenborough crafted a rule to promote certainty of criminal trials: once acquitted, just as once convicted, the defendant could be subject to a civil suit, 413. Grose J., 414, talked only of preventing criminal justice being “defeated”. Le Blanc J., 414–415, spoke similarly, adding that “[a]fter the question of felony has been determined, it leaves the trespass untouched.” Bayley J., 415–416, seemed to focus on the desirability of promoting prosecutions, particularly those where evidence of the victim would lead to an acquittal on a felony charge. Thomas Noon Talfourd (ed.), Dickinson's Practical Guide to the Quarter Sessions, 5th ed. (London 1841), 302 gives this as the first key case in the freezing approach. Cf. the contemporaneous cases of Wallace v Hardacre (1807) 1 Camp. 45; 170 E.R. 870 and especially Cox v Paxton (1810) 17 Ves. 329; 34 E.R. 127.

23 See, e.g., Gimson v Woodfull (1825) 2 Car. & P. 41, 42–3; 172 E.R. 19, 21. In that case the merger rule was used to nonsuit the plaintiff's action in trover against a man who had possession of a horse having purchased it from a thief. Some sympathy must lie with Best C.J. in the vagaries of the duty to prosecute, even in 1889 Bigelow wrote that there seemed to be a condition precedent, but he questioned how it could be enforced: Melville Madison Bigelow, The Law of Torts (Cambridge 1889), 129–130.

24 Stone v Marsh (1827) 6 B. & C. 551; 108 E.R. 554.

25 See generally James Edelman, “Marsh v Keating (1834)” in Charles Mitchell and Paul Mitchell (eds) Landmark Cases in the Law of Restitution (Oxford 2006); See also Macmillan, Catherine, “Rogues Swindlers and Cheats: The Development of Mistake of Identity in English Contract Law” [2005] C.L.J. 711, esp. pp. 718–722Google Scholar.

26 Stone v Marsh (1827) 6 B. & C. 551; 108 E.R. 554, 557 per Pollock; rejected, at pp. 559–560.

27 Ibid., p. 559.

28 Marsh v Keating (1834) 1 Bing. N.C. 198, 131 E.R. esp. pp. 1101–1102 per Park J. Marsh v Keating involved some of the same persons who had been in Stone v Marsh seven years earlier.

29 White v Spettigue (1845) 1 Car. & K. 673; 174 E.R. 986; 13 M. & W. 603; 153 E.R. 252.

30 Ibid., pp. 677–678 per Pollock C.B., pp. 678–679 per Rolfe B.

31 Dudley & West Bromwich Banking Co. v Spittle (1860) 1 J. & H. 14; 70 E.R. 642, 643.

32 A slight regression can be seen two years later in Chowne v Baylis. A clerk, having robbed his employers of money, gave them, upon the discovery of his frauds and before his prosecution, an equitable security of equal value on policies and lands. He was afterwards prosecuted and convicted. The debt was held to be good consideration for the securities, and that they were valid. In effect, the felon could preference one creditor over another. According to Sir John Romilly the civil action was suspended until the felon was convicted, though it mattered not by whom: Chowne v Baylis (1862) 31 Beav. 351; 54 E.R. 1174, 1176–1177, with Bagallay as counsel for Baylis.

33 Gimson v Woodfull (1825) 2 Car. & P. 41; 172 E.R. 19.

34 White v. Spettigue (1845) 1 Car. & K. 673; 174 E.R. 986; 13 M. & W. 603; 153 E.R. 252, 679, per Rolfe B.

35 Wellock v Constantine (1863) 2 H. & C. 146; 159 E.R. 61.. For more detail on non-suiting, particularly without the consent of the plaintiff, see Prichard, M. J., “Nonsuit: A Premature Obituary” [1960] C.L.J. 88CrossRefGoogle Scholar. Prichard particularly highlights, at 88, the removal of the remedy of nonsuit from the High Court under the Rules of the Supreme Court 1883. This would hardly make it an ideal remedy for the merger rule.

36 Wellock v Constantine (1863) 2 H. & C. 146; 159 E.R. 61, 63. At the same time, courts were arguably keen to avoid trespass merging in a felony if possible, e.g., The Princess Royal (1870) L.R. 3 A. & E. 41, 47–48 per Sir Robert Phillimore responding to Phillimore, 43. See also R v Evans (1890) 54 J.P. 471, 471, an odd outlier where substantive civil and criminal laws tightly overlap: an injured party may bring concurrent proceedings, and the civil action will not be stayed, for instance, in libel. The case was phrased as reviewing whether the magistrate had taken into account “fitting” factors in considering an adjournment. It may be that the civil law was thought the best placed to protect the victim's reputation.

37 Wells v Abrahams (1872) L.R. 7 Q.B. 554.

38 E.g., L.R. 7 Q.B. at p.557, per Cockburn C.J.

39 See, e.g., ibid., pp. 558–9 per Cockburn C.J. or pp. 563–4 per Lush J.

40 Wells v Abrahams (1872) L.R. 7 Q.B. 554, 557–558.

41 Ibid., p. 559.

42 Ibid., pp. 560, 562.

43 Ibid., pp. 564–565.

44 Osborn v Gillett (1873) L.R. 8 Ex. 88, esp. p. 93. See later, Mattouk v Massad [1943] A.C. 588.

45 Ex parte Ball, In re Shepherd (1879) 10 Ch. D. 667, 673–674. The rule was also avoided by grounding the action on an antecedent contract in Ex parte Leslie. In re Guerrier (1882) 20 Ch. D. 131, 133.

46 The Midland Insurance v Smith (1881) 6 Q.B.D. 561, 568–576.

47 A v B (1889) 24 L.R. Ir. 235, 237. The case appears to be identical with that reported in S v S (1882) 16 Cox 566 (Queen's Bench of Ireland).

48 A v B (1889) 24 L.R. Ir. 235, 238–239.

49 Ibid., 239–240, 240.

50 Roope v D'Avigdor (1883) 10 Q.B.D. 412, 413–414.

51 Appleby v Franklin (1885) 17 Q.B.D. 93 (District Court), 94 per Huddleston B., 95 per Wills J.

52 James Fitzjames Stephen, Stephen's New Commentaries on the Laws of England (London 1845), 56.

53 James Fitzjames Stephen, Stephen's New Commentaries on the Law of England, 8th ed. (London 1880), 5.

54 James Fitzjames Stephen, A General View of the Criminal Law, 2nd ed. (London 1890), 502–3.

55 Though he located discussion in the “recapture and restitution for the wrongful conversion of chattels” section, thus linking to the second of Watkin Williams J.'s categories.

56 Cf. C.G. Addison On Wrongs and their Remedies (London 1860), 219–220, without citations, with Horace Smith and A. P. Percival Keep Addison on Wrongs and their Remedies, 7th ed. (London 1893), 76: “The duty [to prosecute], if it exists, is confined to felonies …”

57 “The Merger of Tort in Felony” (1883) 47 J.P. 291, 292. Though he thought some discretion might remain for serious cases. Compare with the somewhat derivative “Merger of Trespass in Felony” (1888) 52 JP 803 and the highly critical “The Merger of Trespass in Felony” (1898) Law Times 498.

58 Ames, note 11 above, p. 46. The lectures were given at intervals between 1886 and 1895.

59 Frederick Pollock, The Law of Torts (London 1887), 172–173.

60 The husband was also claiming in his own name for the harm of having lost the consortium of his wife, but the Court of Appeal treated the plaintiffs together: Smith v Selwyn [1914] 3 K.B. 98, e.g., p. 104 per Kennedy L.J.

61 Ibid., pp. 100–101.

62 Ibid., p. 103 per Kennedy L.J.; see also p. 106 per Swinfen Eady L.J and pp. 106–107 per Phillimore L.J.

63 Ibid., p. 102. Frederick Pollock, The Law of Torts, 9th ed. (London 1912), 205–208. Pollock is somewhat sullen in the 10th edition, noting that after Smith v Selwyn, “[d]iscussion of the earlier authorities is therefore no longer useful”: Frederick Pollock, The Law of Torts, 10th ed. (London 1916), 210.

64 See e.g., Harry Street, The Law of Torts, 3rd ed. (London 1963), 97, note 5.

65 Admiralty Commissioners v SS Amerika [1917] A.C. 38, 42–50.

66 Carlisle v Orr [1917] 2 I.R. 534 (Court of Appeal of Ireland), 538 per Gibson J. at first instance and e.g., p. 550 per O'Connor M.R. in the Court of Appeal. A number of the relevant differences in Ireland were cited, such as the lack of an appeal from the Court of Appeal to the House of Lords in England.

67 Tyler v County Council of Cork [1921] 2 I.R. 8 (Court of Appeal of Ireland), at pp. 18–19 per Sir James Campbell C.

68 Rose v Ford [1937] A.C. 828, 847–848 per Lord Wright and see also p. 834 per Lord Atkin and pp. 857–858 per Lord Roche. The House of Lords was referring to Slesser L.J. in the Court of Appeal with an obiter remark on felony merger: Rose v Ford [1936] 1 K.B. 90, 107–108. Lord Atkin appears again shortly thereafter in the Privy Council, apparently endorsing Osborn v Gillett (1873) L.R. 8 Ex. 88: Mattouk v Massad [1943] A.C. 588, 592. It should be noted that the seriousness of the remedy does not seem to have been felt in terms of limitation.

69 Even in probate: Re G [1946] P. 183, 187–189; noted (1946) 62 L.Q.R. 218, 219 doubting any justification for the merger rule.

70 See, Yardy v Greenwood (1935) 79 Sol. J. 363, 1 Law Journal County Court Appeals 218; 219 per Lord Hanworth M.R.

71 Jack Clark (Rainham), Ltd. v Clark [1946] 2 All E.R. 683, 685–685 per Tuckey L.J. The court also stressed that the stay was not automatic, see e.g., Morton L.J., p. 684; noted (1947) 63 L.Q.R. 6.

72 Fowler v Lanning [1959] 1 Q.B. 426, 440. For a similarly tangential reference, see Abbott v Refuge [1962] 1 Q.B. 432, 452–3, 460–462, 469–470, on malicious prosecution.

73 Gouldbourne v Magnus [1959] C.L.Y. 2661 (County Court).

74 Oloro v Ali [1965] 3 All E.R. 829, 830–831 per Milmo J.

75 See Glazebrook, note 11 above, p. 562. He continued, in note 17 on p. 562, to give three heads of criticism: (i) since the defendant cannot plead his own wrong, it comes down to the mode of pleading and leading evidence (ii). It applies only where the defendant is the felon, e.g. not where as chance would have it the goods are no longer in the hands of the felon. (iii) It applies only in respect of felonies.”

76 Criminal Law Revision Committee, Seventh Report: Felonies and Misdemeanours. Cmnd. 2659 (1965), at [80]. This was interpreted correctly by the Winn Committee on personal injuries litigation, one year later: “This seems to have been achieved by abolishing felonies …” Winn, Personal Injuries Litigation, Cmnd 3691 (1968), at [389]. See also Sir Derek Hodgson, Profits of Crime and Their Recovery (London 1984), 13.

77 See, e.g., ss. 2–3, 4 and 5 respectively.

78 Jefferson Ltd. v Bhetcha [1979] 2 All E.R. 1108, 1111–1112.

79 Ibid., 1109. Unfortunately counsel's argument was not reported, so it is unclear who played a role in causing the rule to skip to its new tracks.

80 Wonder Heat Pty Ltd. v Bishop [1960] Vic. Rp. 77; [1960] V.R. 489. The distinction between felony and misdemeanour was abolished in Victoria by the Crimes Act 1958, s. 322B though Pape J. did not seem to think this relevant, even though this was probably the first merger case since the Crimes Act came into force.

81 See, e.g., the rare reference in Panton v Financial Institutions Services Ltd. [2003] UKPC 86, at [7].

82 See, e.g., St. Pierre v South American Stores Ltd. [1936] 1 K.B. 382, an action relating to a lease in a foreign jurisdiction, especially 398 per Scott L.J. on the principles affecting the grant of a stay. The section has been used by about 13 cases in total, two of which are merger cases.

83 Jefferson Ltd. v Bhetcha [1979] 2 All E.R. 1108, 113 per Megaw L.J. Thus the so-called “right to silence” was not a civil law rule. Therefore the trial judge had exercised the discretion poorly on the facts: p.114.

84 For a rare example see In Re D.P.R. Futures Ltd [1989] 1 W.L.R. 778, 790–792. There, per Millett J., the real risk to the defendant's chance to a fair trial if a civil case were to precede a criminal one was outweighed by the potential losses to the large number of small investors.

85 In some of these cases there was a public interest, much like in a criminal prosecution. See, e.g., R v Chance, ex parte Smith [1995] C.L.Y. 147 (District Court).

86 R v British Broadcasting Corp, ex parte Lavelle [1983] 1 All E.R. 241, 253–254 per Woolf J. There was also the earlier case of Bastick v James Lane (Turf Accountants) Ltd [1979] I.C.R. 778 (Employment Appeal Tribunal), 780–784. The Tribunal decided Bastick a week after Jefferson Ltd v Bhetcha [1979] 2 All E.R. 1108 but without reference to it. See also Institute of Chartered Accountants in England and Wales, ex parte Brindle [1995] C.L.Y. 54 and Secretary of State for Trade and Industry v Pollock (1998) C.L.Y. 681 where both stays were granted.

87 R v Panel on Take-overs and Mergers, ex parte Fayed [1992] B.C.L.C. 938 (CA), 947–948, 947: citing the risks of publicity causing prejudice and evidence being fabricated.

88 Surrey Oaklands NHS Trust v Hurley (1999) Lawtel Transcripts June 25 (QBD) where Sullivan J. also held that if one of multiple defendants had no answer to the civil claim, fairness required that to be established at the earliest possible stage.

89 Before these reforms the statutory power had been preserved in s. 49(3) of the Supreme Court Act 1981. For discussion of the proposals preceding the reforms, see A. A. S. Zuckerman and Ross Cranston (eds), Reform of Civil Procedure: Essays on “Access to Justice” (Oxford 1995) while for a guide to their impact immediately on coming into force see Ian Grainger and Michael Fealy, An Introduction to the New Civil Procedure Rules (London 1999).

90 Practice Direction – Applications (2001) P.D. 23 para 11A.1–11A.4.

91 On occasion judges have even taken the Civil Procedure Rules as a reason to be aware of criminal law issues in the cases before them: e.g., Secretary of State for Trade and Industry v Crane [2001] 2 B.C.L.C. 222 (HC), 226–227 per Ferris J.

92 V v C [2002] C.P. Rep. 8 (CA), at [24]–[44]. A court has also refused to stay the civil action merely because witnesses will not co-operate while the criminal case is pending: Secretary of State for Health v Norton Healthcare Ltd. [2003] All E.R. (D) 419. For defendants not co-operating, see Balfron Trustees Ltd. v Peterson and others (No 2) (2001) All England Official Transcripts (1997–2008), [17]–[36], esp. [33]–[36].

93 Barnet London Borough Council v Hurst [2003] 1 W.L.R. 722, at [44] per Brooke L.J.

94 Panton v FIS Ltd [2003] UKPC 86, at [11] also focusing on the right of the plaintiff to have his case decided.

95 E.g., John O'Hare and Kevin Browne, Civil Litigation, 11th ed. (London 2003), at [33.006].

96 Case T-345/05 Mote v European Parliament (Privileges and Immunity) [2008] ECR II-02849.

97 Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324, at [20]–[40].

98 Ibid., at [30]–[32].

99 Ibid., at [35]–[36]. There was also an affirmation of V v C [2002] C.P. Rep. 8 (CA), at [37] on the “right” to silence as opposed to the right against self-incrimination, at [38].

100 A commentator's claim, in 1898, that the legal profession was frequently confronted by mixed tort and crime situations might be an overstatement: “The Merger of Trespass in Felony” (1898) Law Times 498, 498.

101 9 & 10 Vict. c.95.

102 That was in fact the unanimous order in Smith v Selwyn itself, 104–105.The intellectual dishonesty of this was noted in, e.g., Carlisle v Orr [1917] 2 I.R. 534, 545 per the respondent's counsel and Amerika Commissioners v SS Amerika [1917] A.C. 38, 43, 50 per Lord Parker.

103 Such as Jones J. holding that the defendant could not aver his own intention (animo furandi), Markham v Cobb (1625) Jones, W. 147, 149–150; 82 E.R. 79; Lutterell v Reynell (1670) 1 Mod. 282, 283; 86 E.R. 887. See also Wells v Abrahams (1872) L.R. 7 Q.B. 554, 560 per Blackburn J. and F. W. Maitland, Justice and Police (London 1885), 14.

104 Wells v Abrahams L.R. 7 Q.B. at pp. 555, 557–558, 563–564.

105 See Smith v Selwyn [1914] 3 K.B. 98, 103: “It is in the power of the Court to grant a stay, and it is the duty of the Court to consider in each case whether in the circumstances it will grant a stay, if it sees that the claim for damages is based upon a felony committed by the defendant.” Cf. A v B (1889) 24 L.R. Ir. 235, 237 per Holmes J.

106 Perhaps via an unspecified technical error in the plea as may have been the case in Markham v Cobb.

107 Wells v Abrahams (1872) L.R. 7 Q.B. 554, 557–558.

108 This was only a risk, not a certainty, since arguably not all successful civil claims would have been proven to the criminal standard of proof. Being able to claim benefit of clergy had long been a way to avoid the full force of a felony charge, including forfeiture: see, e.g., P.H. Winfield, A Text-Book of the Law of Tort, 2nd ed. (London 1943), 176–177, esp. note n; cf. note 13 above, Holdsworth, iii, 332.

109 See, e.g., P.P. (1833), XXIX, 393, paper 765, Felon's Property Returns for 1823–1833: £3,200 forfeited, of which the majority was held in trust for the felon or his family. See also e.g., HC Deb. vol. 200 cols. 931–937 (30 March 1870) and J.H. Baker An Introduction to English Legal History 4th ed. (London 2002), 509 suggesting that enforcement had tailed off by the eighteenth century.

110 E.g. Gibson v Minet (1791) 1 H. Bl. 569; 126 E.R. 326, 336 per Perryn B.: “for the sake of the public”.

111 David Phillips, Crime and Authority in Victorian England: The Black Country 1835–1860 (London 1977), 123–130: data from the Black Country showed that in 1836 83% of prosecutions were carried out by the victim but in 1851 only 61% were. Nonetheless, in about half of the cases where the victim did not prosecute it was his agent, employee, spouse, parent or child who did. See also Clive Emsley, Crime and Society in England, 1750–1900 4th ed. (Harlow 2010), 188 and Hay, Douglas, “Controlling English Prosecutors” (1983) 21 Osgoode Hall LJ 165, 167Google Scholar adds that treatises did not bother to mention this paradigm of prosecution because it was too common to need comment.

112 See, generally, Joseph Chitty, A Practical Treatise on The Criminal Law 2nd ed. (London 1826) vol. I, ch. 1, “Of the Prosecutor”.

113 On which see Howard, C., “Misprisions, Compounding and Compromises” [1959] Crim. L.R. 750 and 822Google Scholar and Joel Prentiss Bishop, Commentaries on the Criminal law (Boston 1856), §329. See also Hudson, A. H., “Contractual Compromises of Criminal Liability” (1980) 43 M.L.R. 532CrossRefGoogle Scholar, esp. pp. 540 and 542.

114 See Emsley, Crime and Society in England, pp. 197–200; For a sense of the number of tasks involved see Douglas Hay and Francis Snyder, “Using the Criminal Law 1750–1850: Policing, Private Prosecution, and the State” in Douglas Hay and Francis Snyder (eds), Policing and Prosecution in England 1750–1850 (Oxford 1989), 25–6; cf. Jay A Sigler, “Public Prosecutions in England Wales” [1974] Crim. L.R. 642, 642.

115 See Emsley, Crime and Society in England, p. 196.

116 Hay and Snyder, “Using the Criminal Law 1750–1850: Policing, Private Prosecution, and the State” in, 35; Maitland, Justice and Police, 148–149, esp. note 1: p. 141: “To speak of the English system as one of private prosecutions is misleading. It is we who have public prosecutions, for any one of the public may prosecute; abroad they have state prosecutions or official prosecutions.” The sanctity of private prosecutions was upheld even into the 1970s: see Sigler, “Public Prosecutions”, p. 649.

117 A centralized police force was created in London and some parishes in Middlesex and Sussex by the Metropolitan Police Act of 1829. In 1839 the County Police Act permitted Justices of the Peace to create police forces in their counties; such forces were made compulsory by the County and Borough Police Act of 1856.

118 See Emsley, Crime and Society in England, pp. 200–201.

119 Jennifer Davis, “Prosecutions and Their Context: The Use of the Criminal Law in Later Nineteenth-Century London” in Douglas Hay and Francis Snyder (eds) Policing and Prosecution in England 1750–1850 (Oxford 1989), 399–400. See also P.P. 1854–55 (481) xii, Select Committee on Public Prosecutors, questions 2929 and 2931.

120 Hay and Snyder, note 119 above, p. 38.

121 See Emsley, Crime and Society in England, pp. 201–202.

122 P.P. 1870, xxxvi, Report of the Commissioner of Police of the Metropolis for the Year 1869, p. 2.

123 V.A.C. Gatrell, “Crime, Authority and the Policeman-State” in F.M.L. Thompson (ed), The Cambridge Social History of Britain, 1750–1950, vol. 3: Social Agencies and Institutions (Cambridge 1990), esp. 243 and 245–6. See also the data from Crewe, suggesting that 14% of offences were prosecuted by the victim in 1880: Godfrey, Barry, “Changing Prosecution Practices and their Impact on Crime Figures,1857–1940” (2008) 48 British Journal of Criminology 171, 185, 186Google Scholar. Compared to the normally minimalist state intervention of the nineteenth century, in 1863 Stephen identified the state primarily through its function of law-enforced: “The administration of criminal justice is the commonest, the most striking, and the most interesting shape, in which the sovereign power of the state manifests itself to the great bulk of its subjects” in James Fitzjames Stephen, A General View of the Criminal Law (London 1863), 207.

124 These twin interests had been entwined long before, with stolen property being returned to the owner, rather than forfeit to the Crown as far back as Henry VIII, so long as the victim assisted in the apprehension of the wrongdoer: Dyson, Matthew, “Connecting Tort and Crime: Comparative Legal History in England and Spain since 1850” [2009] Cambridge Yearbook of European Legal Studies 247, 256–257Google Scholar.

125 See esp. note 31 above.

126 9 & 10 Vict., c.93, s. 1,

127 See, e.g., Oloro v Ali [1965] 3 All E.R. 829, 830 per Milmo J. It is therefore a slight simplification to say “Smith v. Selwyn is important, then, because it shows that the rule survives the erosion of its foundations [in forfeiture]”: J.C. Smith and B. Hogan Criminal Law (London 1965), 22 referring to Street, note 64 above, p. 97. See also “Damages for Assault” (1935) 80 L.J. 376, 376: the rule was founded in forfeiture, and “therefore, existed originally for the benefit of the Revenue, and, as this reason no longer exists, it has been argued that the rule should be abolished. The cases show, however, that the rule is still useful as a test of the bonâ fides of the plaintiff in a civil action. As the rule is far from being an anachronism, it may, therefore, be expected to survive the scrutiny of the law reformers.” While it may not have come first, the promotion of prosecution was not an “afterthought” to the judges of the nineteenth century, cf. Thomas Atkins Street, The Foundations of Legal Liability (Northport N.Y 1906), 494.

128 This has been judicially recognised, e.g., Rose v Ford [1936] 1 K.B. 90, 847–848; Oloro v Ali [1965] 3 All E.R. 829, 831. See also (1947) 63 L.Q.R. 6 and Winfield, note 14 above, pp. 107–108.

129 See Davis, note 119 above, p. 426.

130 [1962] A.C. 528 which found that the offence did exist in respect of a mere failure to reveal knowledge of a felony, albeit there was some doubt about its past. Cf. P. Glazebrook, R., “Misprision of Felony – Shadow or Phantom?” (1964) 8 American Journal of Legal History 189 and 283CrossRefGoogle Scholar; Glazebrook, P.R., “How long, then, is the arm of the law to be?” (1962) 25 M.L.R. 301CrossRefGoogle Scholar.

131 See, e.g., Smith v Selwyn, 103, having been cited many of the earlier cases, Kennedy L.J. merely proceeded with his judgment: “It is unnecessary to traverse the ground again by going through the authorities which have been so fully dealt with in the argument. In my opinion the result of them is this …”

132 There is one early parallel during counsel's argument in Peddle v Rutter (1837) 8 Car. & P. 337; 173 E.R. 521, 522–523 per Lord Denman C.J.: a criminal action had been ended because the common serjeant thought the civil action was enough. However, this was not referred to in post 1967 cases.

133 See, e.g., the reference in ex parte Fayed [1992] B.C.L.C. 938, 947–948.

134 CLRC Report, note 76 above, at [80].

135 It can only be assumed that the limitation period was suspended along with the right to bring the action.

136 Lord Pearson, Law Reform Committee Fifteenth Report: The Rule in Hollington v. Hewthorn (1967), esp. at [1], [26], [27].

137 For more detail see Dyson, “Connecting Tort and Crime”, note 124 above, pp. 249–256, 257. By comparison, the first power to suspend a civil action where it collaterally attacked an earlier criminal conviction was created Hunter v Chief Constable of West Midlands Police [1982] A.C. 529 (HL). In Hunter the appellants in a civil assault action were some of the “Birmingham Six” who argued that their confessions to an infamous bombing, the key piece of evidence for the prosecution in their murder trials, were the result of assaults by the police and other state agents. In both areas the courts have granted themselves a discretion to stay an action. The relationship between these two discretions is a matter of timing: the power to stay for collateral attack deals with a past criminal adjudication, whereas the trespass merging in a felony rule is, ex hypothesi, a question of future proceedings, or the risk/desire for them.

138 It is even hard to find records of cases which had been stayed returning after the criminal prosecution. This would only be after 1914, so the records should be easier to find, if they exist.

139 J.C. Smith and B. Hogan, Criminal Law (London 1965), 22. Both were Professors of “Common Law”.

140 Hodgson, note 76 above.

141 H. T. J. Macnamara (ed), Paley's Law and Practice of Summary Convictions, 5th ed. (London 1866), 149. On a requirement to drop a concurrent civil action before bringing a prosecution for assault: R v Mahon (1836) 4 A. & E. 575; 111 E.R. 903, 903, per Lord Denman C.J.

142 Thomas Howell, A Complete Collection of State Trials and Proceedings for High Treason (London 1826), 311–312.

143 Though there were later re-appearances: see Glazebrook, note 11 above, pp. 562–572. See also Martin L. Friedland, Double Jeopardy (Oxford, 1969), 174–179, esp. 175 on the roots in forfeiture. The ladder of offences point applies particularly here, as in, e.g., assault and murder: Turner, J. W. Cecil “Assault at Common Law” (1939–1941) 7 C.L.J. 56, 64–67CrossRefGoogle Scholar.

144 S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London 1981), 404–405. See also Josiah W. Smith, Manual of Common Law and Bankruptcy (London 1862), 55 citing Addison (1860), note 56 above, p. 139 though this was a reference to trespass to land.

145 See Glazebrook, note 11 above, pp. 564–566.

146 Ibid., 572–573.

147 Baker v Bolton (1810) 1 Camp. 493; 170 E.R. 1033, 1033.

148 See Holdsworth, note 13 above, vol. iii, 330–331, 333–336 esp. 334; Holdsworth, W. S. “The Origin of the Rule in Baker v Bolton” (1916) 32 L.Q.R. 431, 432–436Google Scholar, esp. 434: Holdsworth even cites a reform proposal from 1657 which proposed making an action after death possible as evidence of this link, William Shepherd, England's Balme (London 1657), 148; see Winfield, note 14 above, pp.176–177.

149 From the first Fatal Accidents Act, 1846, since it expressly excluded the application of the merger rule to an action brought under that Act per s.1.

150 On which see, e.g., W. T. S. Stallybrass (ed.), Salmond on the Law of Torts, 10th ed. (London 1945), 348 citing Holdsworth, note 148 above. For the information on the process of drafting the Act, see SirHutton, Noël “Mechanics of Law Reform” (1961) 24 M.L.R. 18, 23–26CrossRefGoogle Scholar.

151 Kenneth Younger, Advisory Council on the Penal System Report on Reparation by the Offender (1970), at [51].

152 See, e.g., in relation to automatism Mansfield v Weetabix [1998] 1 W.L.R. 1263, 1266, 1268–9; on the civil law of ownership and theft: Bentley v Vilmont (1887) 12 App. Cas. 471, 477 per Lord Watson cf. R v Hinks [2001] 2 A.C. 241, 263–270 per Lord Jauncey (though cf. also pp. 263–270 per Lord Hobhouse); on the meaning of “publication” see R v Sheppard and Whittle [2010] EWCA Crim 65; [2010] 1 Cr. App. R. 26, at [35].

153 As in R v Hinks and R v Sheppard and Whittle, note 152 above.

154 See Ashley, note 5 above, at [17]–[20], [51]–[55], [76] and [86]–[91].

155 Ibid. at [20]. [55], [89]–[90].

156 Indeed, the criminal calculations will be from fundamentally different points of view than the civil: Irene Nadal Gómez, El ejercicio de acciones civiles en el proceso penal (Valencia 2002), 127–128. See in particular articles 362 and 1804 of the Ley de Enjuciamiento Civil 1881; article 40 of the Ley de Enjuciamiento Civil 2000 and Articles 111 and 114 of the Ley de Enjuiciamiento Criminal 1882.

157 This has been the case since at least 1881: Asenjo, Jiménez, “Las cuestiones prejudiciales en materia civil (Ensayo)” (1951) Revista jurídica de Catalunya 234, 249Google Scholar

158 Perhaps because civil and criminal law have often been viewed as technically separate areas of the law so not in need of moderation.

159 See Adorian v MPC [2009] EWCA Civ. 18 on s. 329(2) of the Criminal Justice Act 2003. The existence of s. 329(2) could be a reason for the stay to be exercised under Practice Direction 23 para 11A.1–11A.4. Otherwise the civil court would decide on the liability between the parties without reference to the criteria in the statute, e.g., that the defendant's actions were grossly disproportionate. On the other hand, as a matter of statutory interpretation, if the civil case comes first, there may simply be no force to the 2003 provision. No reported cases on this have been found since Adorian v MPC. Of course, in the majority of situations a criminal conviction will still precede a civil claim.

160 Felonies were some of the clearest examples of unlawful behaviour, and they were less likely to come before the civil courts, in turn making defences based on them less likely to appear, see, e.g., Pitts v Hunt [1991] 1 Q.B. 24, 38–39 per Beldam L.J. The first definite case of ex turpi causa in England was probably Ashton v Turner [1980] 3 All E.R. 870; [1981] Q.B. 137. There may also be a parallel in breach of statutory duty: where a statute imposes a criminal penalty for the failure to uphold a regulatory standard, but is silent on civil liability, there is a presumption that that is an exclusive penalty. See, e.g., Groves v Wimborne [1898] 2 Q.B. 402, 408–410 per A.L. Smith L.J, 414–415 per Rigby L.J.