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.” 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:
- Criminal process is initiated by the State. Criminal prosecution is a manifestation of the State, on behalf of society, bringing its power to bear upon its citizens. To this end, the State has uniquely invasive powers of investigation at its disposal.
- A criminal offence is a breach of a duty owed to the public as a whole. As such, the notion of “social harm” or violation of the collective interest by the mere conduct of the breach is enough to justify the imposition of a penalty. Criminal prosecution can therefore proceed whether or not any harm has been suffered as a result of the breach and the penalty is paid to the State.
- Conventionally, criminal law, as distinct from other kinds of law, is concerned with the punishment of culpable wrongdoing and, for conviction to result, the commission of a criminal offence must be accompanied by proof of subjective liability (i.e. proof of mens rea on the part of the accused).
- While the respective weight given to the various goals of the criminal law has fluctuated over time, those goals are accepted to be to exact retribution or “just desserts”, to deter criminal behaviour both generally and specifically and to protect (by incarceration) the public from further harm.
- A finding of guilt carries with it the enduring stigma of a conviction and can, for the gravest offending, result in the deprivation of liberty.
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:
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.
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. 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. 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.
