North of the Border: To decree or not to decree

carly-forrest-bto

A convicted party has a statutory right to prove they did not commit the offence they were convicted of.

In Scotland, a convicted party has a statutory right to seek to prove they did not commit the offence of which they were convicted – that is not the same as showing they were wrongly convicted and this distinction must be borne in mind.

To decree or not to decree. That is – or was –the question recently answered by the Court of Session when ruling on a motion for summary decree brought by the pursuers in a fatal case in which the first defenders had previously been found guilty of a criminal offence related to the fatality.

The pursuers in the case of Craggs v RHASS & SEP sought to rely on the criminal conviction and have the first defenders’ defence struck out in its entirety, restricting the case against them to quantum alone.

In Scotland, while criminal convictions are not binding on civil courts, Section 10(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 permits a party in civil proceedings to admit as evidence the fact that another party has been convicted of a criminal offence and to rely upon it to reverse the onus of proof.

There must be a coincidence between the terms of the proved libel and the averments of negligence in the civil case and unless the contrary is proved by the convicted party, they shall be taken to have committed the offence. Section 10(2)(a) of the Act provides a statutory basis which allows the convicted party to seek to rebut the presumption of fault.

An equivalent provision exists in the Civil Evidence Act 1968 and in Stupple v Royal Insurance Co. Lord Justice Buckley said: “Although the section has made proof of conviction admissible and has given proof of conviction a particular statutory effect... it remains, I think, as true today as before the Act that mere proof of conviction proves nothing relevant to the plaintiff’s claim, and it clearly cannot be intended to shut out or, I think, to mitigate the effect of any evidence tending to show that the convicted person did not commit the offence.”

In Scotland, the Inner House took a similar view in Towers v Flaws & Anr and added that “the conviction itself carries no probative weight which requires to be balanced with new, or old, evidence which undermines it.”

BTO solicitors acted for the first defenders in Craggs and argued that the necessary coincidence did not exist between the conviction and liability in the civil action. Secondly, they offered to prove that the defenders did not commit the offence of which they had been convicted.

The presiding judge accepted the defenders’ arguments. First, she was not persuaded there was the necessary coincidence “...between the conviction and the bases of liability in these proceedings, such as to enable the pursuers to succeed simply by reason of the fact of the conviction itself”.

Second, the defenders’ position was clear that they intended to invoke s10(2)(a) to demonstrate that they did not commit the offence. She rejected the claimant’s submission that that section should be narrowly construed. To do so would result in “an inherent unfairness to the convicted party”. Third, and in any event, the defenders had raised certain issues in their pleadings which, if proved, would afford them a complete defence to the action.

This case reinforces the position that civil liability will not automatically flow from a criminal conviction. The authorities are clear that a convicted party has a statutory right to seek to prove they did not commit the offence of which they were convicted – that is not the same as showing they were wrongly convicted and this distinction must be borne in mind.

The case also demonstrates the high test that will be applied by the Scottish courts when considering motions for summary decree and the importance of ensuring that a full defence is pled to afford a party the opportunity to oppose such a motion and to do it successfully.

Carly Forrest
Partner and solicitor advocate, BTO

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