The majority of the women’s legal actions are civil cases against the police authorities. We aim to ensure that anyone following or supporting these cases has an opportunity to understand the cases, and so here we attempt to explain what a civil case is, key differences between civil and criminal cases, and any links with possible criminal proceedings that those bringing these cases might have.
What’s the difference between a civil case and a criminal case?
A criminal case is a criminal prosecution that is brought by the state through the police and the CPS (Crown Prosecution Service). The police is the investigating authority; they gather evidence, which they present to the CPS, who then make the decision whether to prosecute and who instruct state lawyers accordingly. In contrast, a civil case is when a private case is brought to court by an individual/ individuals who instruct their own lawyers. The individuals (and their lawyers) gather the evidence which is then presented to court. Once the court examines the evidence and comes to a verdict, the consequences differ in civil and criminal proceedings. In criminal law the consequences are fines and imprisonments as well a community sentences. In civil law the court will order remedies (for example, the award of damages).
In a civil case, the standard of proof is the balance of probabilities – that is, whether something is more likely than not to have occurred. In criminal trials the standard is to be satisfied so that you are sure, as the consequences are more serious for the individual (as outlined above). The test is therefore much higher to prove something in the criminal courts than in a civil case. A judge considering this case will be looking at whether the evidence is more likely than not to be true.
The procedure in a civil case is significantly different to a criminal case – particularly in the areas of disclosure and the admissibility of evidence. In a civil case a wider ambit of evidence is admissible; relevance is the primary test of admissibility. (In this case, at the time of writing, the police are so concerned about disclosure that they are trying to have the case thrown out – ‘struck out’ – and are asking the courts to impose secrecy measures for the proceedings of the case if it does go ahead. The women and their lawyers are strenuously arguing against both strike-out and the secrecy measures.)
The effect of a criminal case is binary – either guilty or not guilty (assuming it goes to an effective trial). In a civil case many more sophisticated and complex issues can be explored and scrutinised.
A criminal prosecution allows for the trial (and sentence, if convicted) of a criminal act or course of action. This kind of prosecution would not have the effect of understanding the processes and systems in place; nor would it scrutinise the actions of those higher in the chain of command or the principles underlying such acts. Criminal cases are not likely to alter policy. In a civil case there is no jury and the trial is heard by one judge. There are no sentences per se – rather there are remedies (see above). Often civil cases change policy more effectively than criminal cases which are not usually concerned with the systemic.
Are the police being accused of criminal offences?
Yes and no. Not all instances of someone breaking the law are ‘criminal’. Actions which break criminal law are described as criminal offences. Actions which break civil law or common law are described as civil wrongs, or ‘torts‘. Some of the ‘torts’ complained of in this case are civil offences but not criminal offences (e.g. misfeasance in public office). However, some of them are also criminal offences (e.g. assault, deception) and therefore the state could, given certain circumstances, bring criminal proceedings in relation to those offences, or individuals could bring private prosecutions (which would also be criminal proceedings). Although some of the allegations being made in this case could be examined under a lens of criminality elsewhere, these proceedings are civil proceedings, and only civil remedies are being sought.
Why are the people affected bringing a civil case, as opposed to making a complaint which could lead to a criminal case?
These proceedings are in the civil arena for a multitude of reasons:
– In pursuing a civil case the claimants and not the state are in control of the case and the manner in which it is presented. They are able to work closely with their legal team; this is most unlikely to happen if they were simply witnesses for the Crown in a criminal case. Taking a civil case does not rule out the people affected also giving witness statements to police investigations, however at the time of writing the police’s insistence on a “Neither Confirm Nor Deny” policy has led the people affected to withhold this course of action for the time being.
– The issues in this case are systemic ie they are not really about the actions of one or more individuals, but rather the structure and culture of the methods of policing. If there were only a criminal prosecution the individual alone would be perceived as responsible (or not) and the organisation would not be put under scrutiny. There are exceptions to this (eg. corporate manslaughter) but none are appropriate in this case as the evidence and the criminal law currently stand. In order to scrutinise the systemic workings of the organization it is helpful to sue the whole organisation and to deal with the torts by the individuals as representative of and authorized by the organization. This explains why the defendants are the Metropolitan Police and ACPO – the command structures, not the officers.
– Pursuing a civil claim does not preclude subsequent criminal action. It may be that in the event of a successful civil claim sufficient evidence emerges that makes the case for pursuing criminal charges overwhelming.
Why is there (as yet) no criminal case being brought over what happened?
A case (or cases) may well take place at some point, but the slow pace and limited remit of current investigations is a cause of great concern:
– In relation to undercover operations up to the year 2000, Operation Herne is the current police investgation into criminal charges. To date, no arrests have yet been made. As the investigating authority, Operation Herne had requested statements from the women in this case. But the investigation – including the officers who would interview the women – would be refusing to confirm or deny (NCND) [link] the identities of the officers concerned, placing the women in an untenable position. After an exchange of correspondence between Operation Herne and the women’s lawyers, in August 2013 the eight women announced [link to post] that they could not co-operate with Operation Herne. Soon afterwards several other parties affected by undercover operations, including both the Lawrence family and whistleblower Peter Francis, announced that they would not co-operate with Operation Herne either. This leaves Herne without key witnesses and key evidence – except, of course, the police’s own officers and their own paper trails.
– In relation to undercover operations after 2000, police lawyers have been arguing – when attempting to defend this case – that post-2000, relationships were authorised by parliament, via RIPA. This assertion – which is contested by the people bringing cases, their lawyers, and many supporters – explains why the police have no current plans to instigate criminal proceedings for post-2000 events. The police’s failure to investigate post-2000, and Operation Herne’s many failures to date, are among the reasons that there is now a campaign for a full and transparent public inquiry into the many issues arising from undercover police operations.
For an overview of this case, please see The Case