2. The Criminal Process and Compensation for Personal Injuries or Death

What then, is the relationship between these offences and the liability of an offender to pay compensation?

I have earlier explained that under the English law of torts as applied by the civil courts there is no necessary link between the commission of a crime and the incidence of civil liability in either direction.¹²⁷ So, the commission of an offence may or may not give rise to civil liability, this depending on whether the facts of the offence satisfy the requirements of a tort. As regards statutory offences, in the absence of express provision, the incidence of civil liability for breach of a duty (whether or not this is also sanctioned by the criminal law) often turns on the notoriously elusive criterion of implied parliamentary interpretation.¹²⁸ Even where a criminal court has convicted a person for a crime of negligence, this is no more than evidence (though important evidence) of negligence for the purposes of civil liability in negligence.¹²⁹

By contrast, English criminal courts enjoy considerable powers to order compensation for the victim of a crime who has suffered personal injuries even where there would as a matter of the civil law be no liability in damages,¹³⁰ but this does not mean that the English criminal process is a significant means of victims of non-intentional criminal offences recovering compensation in any but the least serious cases. This lack of significance is explained by the location of the decision to prosecute and the marginal role of the victim, the relationship between the powers of the criminal courts to award compensation and the substantive criminal responsibilities, and most of all by judicial attitudes to the relative roles of the criminal and civil processes.

(A) The decision to prosecute and the role of the victim

In French law, the victim of a crime can trigger the commencement of criminal proceedings as well as attach himself to a prosecution brought by the public authorities, and in either event can claim damages for the harm which the offence has caused as a full party to the criminal proceedings.¹³¹ None of this is true of English law.

First, as to prosecution, in English law there is a difference between constitutional tradition and modern reality, for while in theory any person may bring a ‘private’ criminal prosecution in respect of any crime,¹³² in practice the decision to prosecute is (p.420) firmly placed in the hands of public prosecuting authorities, leaving the victim no role in the trial of offences beyond being a witness of fact. This general picture is entirely reflected in the case of offences relating to unsafe products, leaving their victims often without even the theoretical power to commence criminal proceedings and, therefore, the chance of benefiting from a compensation order.

The historical starting point was a general right in citizens to initiate criminal proceedings coupled with a responsibility in the Attorney-General to do so,¹³³ but in the course of the nineteenth century the police gradually came to handle the majority of prosecutions and in 1879 the office of Director of Public Prosecutions (‘DPP’) was created, giving statutory recognition to the importance of the public authorities in prosecution.¹³⁴ In the mid-1980s, the decision whether or not to continue criminal proceedings was removed from the police and placed in the hands of a new Crown Prosecution Service, which acts under the direction of the DPP.¹³⁵

However, neither the police nor the Crown Prosecution Service in general see it as their role to investigate, to initiate or to continue criminal proceedings in contexts like health and safety at work or product safety,¹³⁶ though some have argued that they should particularly in relation to cases where death is caused.¹³⁷ Instead, the responsibility for enforcement of most crimes concerned with product safety is placed in the hands of regulatory authorities, notably the environmental health officers and trading standards of local authorities, who rely extensively on ‘compliance strategies’, in the enforcement of the law, that is, they prefer to use persuasion and negotiation and keep prosecution as a last resort for serious or recurrent offences.¹³⁸ While the prosecuting authorities take into account the harm which an offence has caused in their decision whether or not to prosecute,¹³⁹ to the extent that prosecutions are not brought by such enforcement agencies, then there can be no question of a victim of an offence being the recipient of a compensation order made by a court. Moreover, while English courts have accepted that a citizen can challenge a public prosecutorial decision not to prosecute an alleged offender by judicial review, they have made it very clear that they will not quash such a decision except in extreme circumstances.¹⁴⁰ The courts have taken a similar approach to the question whether a public prosecutor’s decision to continue criminal proceedings (or to continue them on one charge rather than another) is subject to judicial review.¹⁴¹

Furthermore, the bringing of a private prosecution is not a realistic alternative for a victim of a crime arising from an unsafe product, even though the formal right to bring a private prosecution was expressly preserved when the Crown Prosecution Service was created.¹⁴² First, many modern statutory offences are made the object of (p.421) exclusive enforcement procedures or subjected to the requirement of obtaining the consent of either the Attorney-General or the DPP, particularly in the case of ‘regulatory offences’.¹⁴³ The position regarding the prosecution of the special offences relating to unsafe products in this respect is somewhat mixed. It is clear that prosecutions for offences under the Health and Safety at Work Act¹⁴⁴ and the Water Act 1989¹⁴⁵ can be brought only by the relevant public enforcement authorities; but offences created by the Food Safety Act 1990 may (in theory) be prosecuted by persons other than the public authorities whose particular responsibility this is made.¹⁴⁶ In the case of the Consumer Protection Act 1987 and the General Product Safety Regulations 1994 (with certain exceptions),¹⁴⁷ the trading standards officers of the local authority have a duty to enforce offences against safety regulations and against the general safety requirement.¹⁴⁸ It is not clear whether this duty to enforce consumer protection offences excludes the right of any citizen to prosecute.¹⁴⁹

Secondly, the exercise of the ‘right’ of private prosecution is subject to review by the public prosecution authorities. In the case of crimes triable on indictment (and therefore including manslaughter), the Attorney-General has a complete discretion¹⁵⁰ to enter an order of nolle prosequi at any time before judgment,¹⁵¹ the technical effect of which is an indefinite adjournment but which in practice puts an end to the criminal proceedings.¹⁵² This power is said to be used sparingly, where prosecution would be oppressive, for example, if the accused is seriously ill.¹⁵³ However, the DPP and the Crown Prosecution Service also have the power to take over any criminal proceedings initiated by a private individual.¹⁵⁴ While originally the victim of a crime could apply to the High Court if the DPP neglected to continue the proceedings,¹⁵⁵ this power was later abolished, partly because it left open the way for vindictive prosecutions and partly because of disuse.¹⁵⁶ As a result, the public prosecuting authorities have the power to take over the conduct of any criminal proceedings and (p.422) then discontinue them.¹⁵⁷ On occasion the DPP has used the threat of his taking over a private prosecution in order to discourage its initiation, as in the case of the proceedings for manslaughter brought by the husband of one of the deceased victims of the Marchioness Riverboat disaster against the company which operated one of the two boats and against four of that company’s employees.¹⁵⁸ Finally, the Attorney-General may apply to the High Court requesting it to forbid a person from bringing any further criminal prosecutions without its leave where that person has instituted ‘vexatious prosecutions’.¹⁵⁹

This picture is strikingly different from the French. For while specialist agencies exist to investigate consumer offences and appear to follow similar enforcement strategies,¹⁶⁰ either the direct victim or a consumers’ association may trigger criminal proceedings even if the public prosecutor considers that they should not be brought: it is the juge d’instruction who decides whether or not proceedings should continue after investigation of the facts.¹⁶¹ Moreover, there is no real equivalent in the English legal system of the possibility open to French consumers’ associations of pursuing criminal prosecutions where they can show that an offence has affected the interests of consumers.¹⁶² And the French controls on the right of victims of crime to trigger criminal proceedings do not include a power in the public prosecuting authority (the ministère public) to prevent their continuance.¹⁶³