Exploring the overlaps between civil and criminal law

In this article, Aimee Stokes explores how civil and criminal law, often viewed as distinct entities with their own procedures, objectives, and outcomes, intersect in several areas, creating a complex interplay that can significantly impact the parties involved.

Concurrent proceedings: prioritisation and burden of proof

When civil and criminal proceedings run alongside each other, the criminal case will typically take precedence. This is primarily due to the higher burden of proof required in criminal cases—"beyond reasonable doubt" or so that the jury are sure—compared to “on the balance of probabilities" in civil cases. This key difference means that the outcome of a criminal matter can significantly influence the civil proceedings as the evidence is deemed to have been tested to a higher standard of proof.

If an individual or organisation is convicted in a criminal court, the conviction can be cross-admitted to civil proceedings as evidence that the alleged act was committed. Likewise, it will be an important factor to note in civil proceedings, if an individual or organisation has been acquitted, albeit it by no means prevents the civil claim succeeding, given the lower standard of proof. In summary, the same alleged act can have different outcomes depending on the proceedings in which the evidence is tested. 

Examples of overlap

There are many circumstances where we may see the same alleged act being subject to both criminal and civil proceedings.

A road traffic accident is perhaps the most common example. There is a strong potential for a civil claim to reflect any personal injury or property damage caused as the result of a collision. There's also the potential for a criminal investigation if the driving was thought to have deviated from that of a careful and competent driver. 

Harassment, offences against the person and sexual offences can also involve both civil and criminal proceedings. The overlaps here often occur in the form of addressing the risk of potential future harm. A victim of these types of offences may obtain a non-molestation order in the civil or family court to prevent further abuse, while criminal charges are pursued simultaneously. This is particularly common where the offence has occurred in a domestic setting. Regardless of whether a defendant is then convicted in the criminal proceedings, the court can also seek to impose a restraining order which aims to provide additional protection for the victim. This overlap and dual approach aims to ensure the victim receives immediate and effective protection while the criminal justice system addresses the perpetrator's conduct.

Fraud and theft offences are another common example. These offences can significantly impact an individual or organisation’s financial position, thus the focus is generally on asset recovery. Proceedings can be brought through civil litigation to recover the losses suffered from fraudulent activity. Similarly, should a criminal prosecution be brought, the prosecution can seek to recover the monies obtained by deceit pursuant to the Proceeds of Crime Act 2002. 

New criminal offence of failure to prevent fraud

An interesting new development in this intersection is the introduction of the criminal offence of failure to prevent fraud pursuant to the Economic Crime and Corporate Transparency Act 2023. This offence will come into effect on 1 September 2025.  

This new offence expands the scope of corporate criminal liability far beyond that which previously existed. It significantly overlaps with activities which have, until now, been subject to civil proceedings. We're, therefore, likely to see a rise in parallel criminal and civil proceedings against organisations.

Given the various time restrictions which apply to civil claims, I anticipate the initial prosecutions brought under the new offence will be private. This is on the assumption that prosecuting agencies, such as the Crown Prosecution Service, will be slow to adopt the new legislation. 

My colleague, Claire O’Reilly, has recently written about what this development means for organisations. You can view the article here.

Why understanding the interaction is important

Understanding the interaction between civil and criminal law is crucial for several reasons. It helps in formulating a comprehensive legal strategy, as a criminal conviction can significantly bolster a civil case by providing strong evidence of wrongdoing. Awareness of both types of proceedings ensures that individuals and organisations can better protect their rights, such as victims of harassment seeking immediate protection through civil orders while criminal charges are pursued. This knowledge also leads to more efficient use of legal resources, allowing legal practitioners to coordinate efforts across both proceedings to avoid duplication and ensure a cohesive approach. 

Conclusion

The intersections between civil and criminal law create a dynamic legal environment where the outcomes of one proceeding can significantly influence the other. Understanding these overlaps is essential for individuals involved in such cases. 

Aimee Stokes, senior associate (barrister) at Mills & Reeve, is able to offer support and expertise in this area.

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