Criminal, Civil, Confused??


You may be forgiven for thinking that if a judge brandishes a person a rapist, should they not go directly to jail? Furthermore if there is enough evidence for a judge to find that a rape did occur, why has there been no criminal prosecution?

It is not uncommon for parallel civil/criminal actions to be brought, especially in cases involving economic crime (see Otkritie v Urumov and Others). However it is more unusual for a civil remedy to be sought in cases concerning sex offences.  

Irrespective of the outcome of a criminal investigation or prosecution, victims of any crime can issue civil claims against their offenders. However, unlike in the criminal justice procedure, the role of the civil justice system is not to determine if offender is guilty of a crime. On the contrary, civil courts aim to establish whether an offender is liable for the injuries sustained as a result of the crime. If it is found that the offender is liable, the court can order them to pay compensation to the victim which in this case amounted to £100,000 from each footballer.

If a prosecution fails, or like in this case never gets off the ground, then a civil action maybe a sensible alternative.  The stress and uncertainty, not to mention the cost, of issuing civil proceedings can be discouraging.Private prosecutions are another option but there are advantages to a civil action:

A lower standard of proof in civil cases. In all criminal proceedings the prosecution must prove beyond reasonable doubt that the defendant is guilty. If there is any reasonable doubt, a jury or magistrate must acquit the defendant.In civil cases the standard of proof is lower: the claimant need only prove their case on the balance of probabilities in order to succeed.

The victim has more control of the case. In criminal cases the prosecution is brought on behalf of the Crown, however claimants in civil actions are party to the case and cannot be excluded from the decision making process. 

They can result in greater compensation for victims. While the damages awarded can never fully compensate a victim for the trauma suffered, it can play a crucial role in helping victims rebuild their lives.

They can provide justice and hold a criminal to account. A civil remedy is designed to return the victim to the position that she or he would have been in but for the act of the offender. Civil actions can hold offenders directly accountable to victims. 

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Two footballers branded rapists by a judge in a civil action have begun an appeal which could lead to a full legal challenge against the finding. Former Dundee United teammates David Goodwillie and David Robertson were ordered to pay damages to Denise Clair following a hearing in January. Ms Clair, who previously waived her right to anonymity, sued Goodwillie and Robertson at the Court of Session after the Crown decided not to prosecute. She said the two men raped her at a flat in West Lothian in January 2011. The mother-of-one maintained she was incapable of giving free agreement to sex because of her alcohol consumption. Goodwillie and Robertson claimed that intercourse had been consensual, but Lord Armstrong said Ms Clair's evidence was "cogent, persuasive and compelling" and ruled against them.
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