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Eve, as a practical joke, asks Mark to go to a place she describes as a “public park” to fetch a hat she had supposedly left behind. Unbeknownst to Mark (but beknownst to Eve) the area is actually an unmarked Wild Turtle preserve. A law criminalises trespassing onto such a place, and the law does not require that the trespass be “deliberate” or “knowing”. Neither the prosecutor nor the judge is feeling jurisprudential; the judge shrugs, mutters “ignorantia legis”, and sentences Mark to a year in prison. (Eve is possibly also convicted of something or other.) Needless to say, Mark loses his job, future career prospects, and (depending on jurisdiction) right to vote.

Independent of criminal liability, does Mark have a cause of civil action against Eve?

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    Sep 27, 2023 at 5:31

2 Answers 2

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In , Mark's claim is likely to fail. There are several overlapping principles, which are different rules of law but which all point to the same outcome:

  1. "It is a rule of law and a manifestation of public policy that a civil court will not award damages to compensate a claimant for a disadvantage which the criminal courts have imposed on him or her by way of punishment for a criminal act for which he or she was responsible."

  2. "A collateral attack on a subsisting conviction and sentence is an abuse of process and will be struck out pursuant to CPR 3.4(2)(6)."

  3. "It would be incoherent if the civil law produced a result which was inconsistent with the verdict and punishment imposed by the criminal law; it could not condone illegality by giving with one hand what it had taken with the other."

(Lord Justice Coulson in Day v Womble Bond Dickinson [2020] EWCA Civ 447 at paragraphs 28, 35 and 41.)

In the Day case, the appellant was convicted of cutting down trees in a protected woodland, for which he was fined £450k and about the same again in costs. He then tried to bring an action against his own solicitors for negligence and breach of contract, but his claim was struck out by the civil judge at first instance, on the grounds described above; and the Court of Appeal agreed. The main point was that the criminal courts had already assessed Day's degree of culpability, and the right way for him to challenge that was through the criminal appeals process, rather than trying to get a civil court to undermine the determination. An award of damages would have the effect of reversing the imposition of a fine by the criminal court, and in general could run counter to its findings as to the defendant's "very considerable" level of responsibility for his actions. (The Court of Appeal did allow one ground of appeal in relation to increased costs owing to the respondents' alleged negligence, but not the core argument.)

Suppose that the facts were different, and the claimant was suing somebody who had advised him to cut down the trees, on the grounds that they'd known the trees were protected and wanted him to get in trouble. This is the kind of thing which could have been mentioned in the criminal proceedings. If the criminal courts had taken all the information into account, but nonetheless found the claimant guilty, then the doctrines mentioned above would still apply, per the various high authorities cited in Day, principally Gray v Thames Trains Ltd [2009] UKHL 33. Notably, the judges in Gray considered a range of scenarios, such as people who commit offences while mentally impaired due to the actions of another, and still decided that the coherence of the civil and criminal law was paramount. A provision of the criminal law whereby someone could be found guilty even without criminal intent is in the same category. It is not for the civil courts to decide that the criminal courts were wrong to apply such a law.

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  • 3
    What rules would apply if, after Mark's conviction, Eve were to start bragging on social media about how she'd managed to get Mark in trouble, and prior to this Mark would have had no evidence of Eve's intentions? Alternatively, what if the rule had forbidden entry onto posted preserves, and Eve were to boast about how she had concealed the signage so that Mark wouldn't be able to see it--information which had Mark been aware would have justified his action and made it non-criminal?
    – supercat
    Sep 26, 2023 at 17:00
  • @supercat wouldn't it still be the responsibility of the criminal court to rectify (or not) their decision, and not the civil court's? Sep 26, 2023 at 20:24
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    @Blueriver: If the facts come to light after damage has already resulted from Mark's conviction--possibly after the sentence has been served--who should pay the costs associated with determining that the conviction would not have occurred if the facts had come to light sooner? Having to have a separate case to determine that before allowing for a civil trial would seem inefficient.
    – supercat
    Sep 26, 2023 at 20:37
  • The extra scenarios would need a bit more analysis, but courts have sometimes allowed collateral attacks, when denying a hearing would be even more unjust. Very significant new evidence might be an example. The bar is high when the prior case is a criminal one, though, for the public policy reason. The civil courts would find it easier if Mark's conviction had first been quashed on appeal, because that removes the whole issue.
    – alexg
    Sep 26, 2023 at 21:30
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    note that the mob boss can then be guilty as well as the principal offender, not instead of him
    – alexg
    Sep 27, 2023 at 20:02
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In the hypothetical jurisdiction a duty of care arose in the circumstances and Eve breached the duty, causing damages to Mark, which gives Mark a cause of action against Eve.

Although in the circumstances the relationship between Eve and Mark is not one of the recognised relationships where a duty of care has been established by precedent (such as teacher-student, manufacturer-consumer, employer-employee), the circumstances satisfy the tripartite test for duty of care established in case law and confirmed by the highest court in the land.

The tripartite test: (1) there must have been a foreseeable risk of harm as a result of the defendant's conduct, (2) a proximate relationship between the defendant and claimant, and (3) it should be fair, just and reasonable in the circumstances to impose a liability on the defendant.

  1. Defendant Eve caused a reasonably foreesable harm to claimant Mark: "everyone agrees Eve was deliberately attempting to get Mark arrested" for a criminal offence; it was foreseeable that prosecution, conviction and punishment could follow.

  2. There was 'proximity' in that Eve directly asked Mark to do something Eve knew was illegal (and that he did not know was illegal). It was not an omission on her part, it was her 'positive act' that resulted in Mark's offence (and punishment).

  3. In the circumstances it is fair, just and reasonable to impose liability on Eve, because Mark would have not suffered harm if Eve had not deliberately misled him with the intent to cause him harm.


Wikipedia article on duty of care in English law

Wikipedia article on source of tripartite test for duty of care: Caparo Industries PLC v Dickman [1990] UKHL 2

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