Chapter 3
The nature of civil pecuniary penalties

The criminal-civil divide

3.4The distinction between the branches of criminal and civil law is deeply ingrained in common law justice systems. Dr Kenneth Mann describes how the foundations of the distinction were laid down in the 14th and 15th centuries and quotes Lord Mansfield, writing in 1776: “Now there is no distinction better known, than the distinction between civil and criminal law; or between criminal prosecutions and civil actions.”63  This is not to say that overlaps have not always existed, but the distinction has been central to how we think about the law. Much of this is attributable to the particular aims and functions of the criminal law. Traditionally, it is defined by the following features:
3.5The question of degrees of “harm” is not included in the above list. This is because, while it is common to describe criminal law as being directed at what society considers the most serious wrongs, it is not true to say that it targets only serious wrongs. There are many criminal offences which are directed at comparatively benign conduct, such as dropping litter. As Andrew Ashworth puts it:68

There are many offences for which criminal liability is merely imposed by Parliament as a practical means of regulating an activity, without implying the element of social condemnation which is characteristic of major or traditional crimes. There is thus no general dividing line between criminal and non-criminal conduct, or between seriously wrongful or other conduct.

3.6Instead, Ashworth emphasises that the idea of crime is that it is something that rightly concerns the State rather than just the victims of the wrongdoing. Many crimes are also civil wrongs, and in the civil sphere it is for the injured party to decide whether or not to sue for damages. What distinguishes crime is that the decision has been made that there is a public and therefore State interest in ensuring that the conduct does not happen and in punishing it when it does.69

3.7Criminal justice is administered in a particular way in recognition of the inequality of power between the two parties and the potential gravity of a criminal sanction. In particular, criminal procedure has developed to ensure that the innocent are not punished and that individuals are protected against abuses of the State’s power. Accordingly, criminal trial is accusatorial: the prosecutor must make out a case and the accused may remain silent. Trial by jury exists for the most serious offences. A decision-maker cannot convict unless satisfied of guilt beyond reasonable doubt, and the defendant is presumed innocent until guilt is so established. Criminal trials are directed by strict rules of procedure and restrictive rules of evidence. These are fundamental legal tenets that are given specific and heightened protection in the New Zealand Bill of Rights Act 1990 (NZBORA). The NZBORA protections come into play from the moment of a person’s arrest or detention.

3.8It is difficult to describe satisfactorily the traditional features of civil action. For example, for the most part, civil actions rely on different notions of guilt than the criminal law; however, that is not to say that some do not require proof of some degree of intention. And while, unlike the criminal law, a successful action for damages generally requires that the defendant’s actions resulted in harm to the plaintiff, this is not true for all civil wrongs.70  Generally, the goals of the civil law differ from the criminal law – for example they include the resolution of disputes between individuals, the vindication of rights and the determination of who should bear the cost of harms that have occurred. For these purposes, civil remedies include the payment of compensation; the restoration of a claimant to the position he or she would have been in without the wrong; or the stopping of defined conduct. But other remedies do more than restore and may have a punitive or deterrent purpose.
3.9The Commission considers that the key distinction for the purposes of this Issues Paper, however, relates to the State’s involvement in civil proceedings. Generally, the State’s role is limited to providing the forum for the resolution of civil disputes. When a government body is involved in civil proceedings directly, it does so from a standpoint of protecting its interests as if it were a private party, rather than acting on behalf of society as a whole.71  Civil proceedings, then, are considered to take place between more equally matched individuals, both of whom are engaging in litigation to protect their own private interests. And, unlike in the criminal field where criminal fines are paid to the Crown, compensation won in civil proceedings is paid directly to the victim.

3.10As is the case with criminal law, civil justice is administered in a way which reflects its goals and outcomes. Civil procedure is characterised by a level playing field between litigants. The default position is for disclosure between the parties in the interests of justice. Generally, civil cases are heard before a judge alone and the court need only be persuaded of liability on the balance of probabilities. While s 27(1) of NZBORA protects a person’s right to the observance of the principles of natural justice in civil proceedings, the protections afforded in criminal proceedings do not generally apply. However, courts retain the discretion to adjust proceedings according to the individual needs of justice.

63K Mann “Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law” (1992) 101(5) Yale LJ 1795.
64Although private prosecution is provided for in s 15 of the Criminal Procedure Act 2011, the great majority of criminal proceedings are prosecuted by the Crown.
65Mann, above n 63 at 1806–1807.
66R Duff “Theorising Criminal Law; a 25th Anniversary Essay” (2005) 25 OJLS 353.
67Mann, above n 63 at 1805. Strict and absolute liability offences are exceptions to this presumption and are discussed below.
68A Ashworth Principles of Criminal Law (6th ed, Oxford University Press, Oxford, 2009) at 2.
69Ashworth, above at 2.
70An example is defamation which is a strict liability civil wrong.
71And in those circumstances, the Crown Proceedings Act 1957 applies. The Act was enacted to ensure that the Crown does not enjoy a privileged position in litigation so that citizens can bring just claims against the Crown, and to allow the Crown to appropriately defend claims.