May 22, 2019

Can you challenge a criminal conviction in a civil claim?

If you are convicted of a crime, can you contest that in a civil claim? In Vincent Friel v Dr Ian Brown [2019] CSOH 30 Lady Carmichael addressed the question of whether this would be an abuse of process or, rather, was permitted by section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. Section 10(2) states that in civil proceedings, a person shall be taken to have committed an offence of which he has been convicted unless the contrary is proved.

Friel was convicted under the Road Traffic Act 1988. He drove a car which struck two pedestrians. Friel was convicted despite lodging a special defence of automatism.

He later brought a civil claim against Dr Brown, who had prescribed the drug Tildiem. He alleged Tildiem caused a rapid fall in his blood pressure, leading to loss of consciousness and ultimately the accident.

Dr Brown argued the claim was an abuse of process. For Friel to succeed, he required to prove he had been rendered unconscious by Tildiem. This would indirectly challenge the conviction as the jury must have rejected his automatism defence. Such a challenge to a conviction was against public policy and was an abuse of process.

Friel argued that under section 10(2) Dr Brown had a statutory right to rely upon the conviction but that he had a right to prove that he had not committed the offence. The issues against Dr Brown were different from the issues raised at the trial.

Lady Carmichael considered the 'Birmingham bombers' case of Hunter v Chief Constable of West Midlands Police [1982] AC 529. During the criminal trial, there was an objection to evidence of confessions on the basis that they were obtained by violence. The trial judge ruled that the confessions were admissible. The House of Lords struck out Mr Hunter's subsequent claim against the police for assaulting him. They held it would be an abuse of process for a person to bring a previously decided criminal case back to court as a civil claim.

Lady Carmichael considered that the jury must have rejected the proposition that Friel became unconscious as a result of a fall in blood pressure. She concluded that Friel's civil claim ran counter to the basis on which he was convicted, and therefore challenged the conviction. That made it an abuse of process. Section 10 did not permit a court to find that a conviction was wrong, but would allow a party to prove he had not committed the acts libelled in the criminal trial.

However clearly expressed, the line between abuse of process and legitimate use of section 10 seems very narrow. Take civil claims based on convictions for historic abuse. It may be that those convicted of abuse cannot offer to prove that they did not commit the offences in any civil claim for damages. But what about when the defender is an organisation said to be vicariously liable? Could they rely on section 10? Further litigation is likely.