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Book reviews

18 January 16

Review of Comparing Tort and Crime (ed Dyson)

by Alastair Brown (review editor: David J Dickson)

Comparing Tort and Crime: Learning from Across and Within Legal Systems

Edited by Matthew Dyson

ISBN: 978-1107080485
PRICE: £89.99

Travel is said to broaden the mind and to help the traveller to understand and appreciate their own country better. Much the same can be said of comparative law. By reading about the law in other jurisdictions, it is possible to gain a deeper understanding of underlying legal theory and, hence, of one’s own national law. Those with an interest in delict or in crime, as well as those with a more general interest in how legal systems work, will learn much from this book.

The starting point, articulated in his introduction by Matthew Dyson, is that tort and crime both try to regulate future behaviour and to respond to wrongs that have already happened, but that there are questions about how legal systems co-ordinate or leave wild the border between the two disciplines. In order to address those questions, the book brings together academics from seven European jurisdictions plus Australia to compare the law connecting tort and crime across their jurisdictions and to compare the two disciplines within each legal system. The systems represented were chosen for their legal diversity. Each chapter is written by a pair or small team of authors, using a common framework to consider where interactions between tort and crime happen, how they happen, why they happen and when they happen.

To answer these questions for any jurisdiction in the space of a single chapter is a considerable challenge. With almost every chapter, the reader steps into foreign territory. The authors have to assume that their readers need to be introduced to the fundamentals of the system but also that, having grasped those fundamentals, those readers are interested in sophisticated analysis and comparison. Every chapter meets the challenge well and succeeds, though some of the authors are modest about their work. At one point, Phillip Hellwege and Petra Wittig, writing about the German position, apologise for the fact that what they have written about the respective functions of the law of delict and of criminal law is “a brief and simplistic account of a complex and controversial discussion". That may be so; but it is also (like everything else in the book) a clear, well structured and altogether helpful account.

The task undertaken in the book is an important one. The principle of the unity of the law (if indeed it can be characterised as a principle), its interaction with res judicata and the question whether there is a "timing" rule dealing with the priority between civil and criminal proceedings arising out of a single incident, have to be dealt with by all jurisdictions. The Spanish authors (Lorena Bachmaier Winter, Carlos Goméz-Jara Diéz and Albert Ruda-Gónzalez) explain that, for their law, "The dominant development in substantive criminal law has been the disappearance of any clearly definable line between civil and criminal law." This seems to take the unity of the law to an extreme. They characterise it as blurring of borders and they assert that it results in injustice and weakens the efficacy of criminal law as an instrument of social control. If that analysis is justified and if it describes a development which is widespread, the consequences would need careful thought and a well judged response.

By contrast, however, the English authors (Matthew Dyson and John Randall), whilst describing some overlap, write about the "splendid isolation" between tort and crime. "English lawyers", they say, "...tend to see the places where tort and crime grate against each other as isolated incidents" (emphasis added). John Blackie and James Chalmers, writing about Scots law, and Hellwege and Wittig, writing about the German position, also describe significant separation between the two disciplines. On the other hand, Valérie Malabat and Véronique Wester-Ouisse describe a system in France which appears to integrate them in a way which gives meaning to the concept of the unity of the law and which is not said to operate to the detriment of either regime.

No attempt should be made to read the whole book at a single sitting. Each chapter needs to be mulled over. After the introduction, the obvious starting point for the Scots lawyer is the Scots chapter. As one would expect from Messrs Blackie and Chalmers, it is excellent. In particular, in making the comparison between delict and crime in a framework which facilitates comparison with the other chapters and which does not assume previous knowledge, they provide a perspective on both delict and crime which is different from that of work which concentrates on one or other and which is illuminating as a result. Having taken time to understand what is being said about our own system, one can begin the Grand Tour and can do so in almost any country.

Some of what is described for other systems is easy to relate to; but some is not. Discussing the German position, Hellwege and Wittig note the different approaches taken by private lawyers and criminal lawyers: "private lawyers primarily discuss the functions of the law of delict... criminal lawyers are not only concerned with the purposes of crime and punishment but also with the question of why a society should be allowed to punish" (emphasis added). For the lawyer from an English-speaking system, this is likely to resonate with Fletcher's proposition (in his important monograph Rethinking Criminal Law, published in 1978) that criminal law is a species of moral philosophy, concerned with the justification of the use of state power against free and autonomous persons. In a German context, Hellwege and Wittig trace the discussion to von Hippel, writing in 1925.

Another example of something to which it is easy to relate is to be found in the account of the Dutch system, given by Ivo Giesen, Francois Kristen and Renée Kool. They explain that, in the Netherlands, crimes are torts and torts may be crimes and that criminal conviction is strong evidence for a later related tort claim. The Scots reader is unlikely to find that startling. Then, however, they explain that, in the Netherlands, a criminal court is equivalent to a civil court when it comes to dealing with the victim’s tort claim. That is, to be sure, qualified by the fact that the victim may be a participant in but not a party to the criminal proceedings. It is also qualified by the application of the “10 minute rule”, in terms of which, if the Dutch criminal court considers that dealing with the civil claim will take longer than 10 minutes, it is ruled inadmissible. Even with these qualifications, the approach in the Netherlands is clearly very different from our own.

Blackie and Chalmers point out, under reference to Notman v Henderson 1992 SCCR 409, that the Scottish compensation order is primarily a form of punishment rather than a substitute for damages in a civil case. Then one comes to the French distinction between civil actions and actions with civil ends. Although it is well explained by Malabat and Wester-Ouisse, it is distinctly foreign. (It might be that this is due, in part, to the need to render, in English, technical legal expressions which have no real counterparts in English speaking legal systems.)

The Australian chapter (by Kylie Burns, Arlie Loghnan, Mark Lunney and Sonya Willis) highlights two considerations which are not aspects of legal theory but which have influenced the law in all jurisdictions considered. The first is the influence of insurance companies on delict. As they put it, "Australian tort law has developed in the shadow and influence of insurance". That influence is noted in other chapters too, including in particular those in relation to Sweden (Sandra Friberg and Martin Sunnqvist) and France. The second consideration highlighted in the Australian chapter, but also remarked on by Antoine Garapon in his foreword, is the influence of "law and order" politics. This seems to recall Packer's (much criticised but still useful) distinction between "judicial due process" and "crime control" models of criminal justice (H L Packer, The Limits of the Criminal Sanction, Stanford University Press, 1969; for its usefulness, see, for example, Peter Duff, "Chalmers to Cadder: Full Circle on Police Interrogation", 2015 Edinburgh Law Review 186). When Packer wrote, the due process model appeared to be in the ascendant. Now, however, Garapon finds it necessary to criticise what he calls the “over-criminalisation” of acts in order to protect victims. He also notes that criminal offences are growing and criminal sanctions becoming harsher, driven by law and order politics.

In tort/delict, however, as several contributions make clear, the debate is about how far an order for the payment of damages should be compensatory and how far it should be punitive. The restitutionary approach of Scots delict law, as described by Blackie and Chalmers, seems to represent one end of a spectrum. Even for countries which take such an approach, however, the question of punitive damages is not merely theoretical. Malabat and Wester-Ouisse note that, in 2010, the French Cour de Cassation had to consider whether an American award of punitive damages was enforceable in France. It was held not to be, on the basis that it was manifestly disproportionate to the loss. There appears to be support for that approach from the European Court of Human Rights (in Pressos compania Naviera v Belgium (1996) 21 EHRR 301) and in the Rome II Regulation on the law applicable to non contractual obligations (EC 864/2007).

Dyson draws the book together, reflecting on the journey with a masterly chapter entitled “Tortious apples and criminal oranges”. He cannot really be said to come to a conclusion, because he ends with the observation that “There is much more work to be done in unravelling the complex and important relationship between these two areas”. That is, no doubt, true; but this book achieves much and is recommended without hesitation. As Garapon puts it, “A successful book is one in which we learn something and which calls into question what we have learnt before. This is just such a book.”

Sheriff Alastair N Brown PhD

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