Differences between Civil and Criminal Procedure
Criminal and civil procedures are different. Although some systems, including
the English and French, allow private persons to bring a criminal
prosecution against another person, prosecutions are nearly always started
by the state, in order to punish the defendant. Civil actions, on the other
hand, are started by private individuals, companies or organizations, for
their own benefit. In addition, governments (or their subdivisions or agencies)
may also be parties to civil actions. The cases are usually heard in different
courts, and juries are not so often used in civil cases.
Most countries make a clear distinction between civil and criminal
procedure. For example, a criminal court may force a convicted defendant
to pay a fine as punishment for his crime, and the legal costs of both the
prosecution and defence. But the victim of the crime generally pursues his
claim for compensation in a civil, not a criminal, action. In France and
England, however, a victim of a crime may incidentally be awarded
compensation by a criminal court judge.
Evidence from a criminal trial is generally admissible as evidence in a
civil action about the same matter. For example, the victim of a road
accident does not directly benefit if the driver who injured him is found
guilty of the crime of careless driving. He still has to prove his case in a civil
action, unless the doctrine of collateral estoppel applies, as it does in most
American jurisdictions. In fact he may be able to prove his civil case even
when the driver is found not guilty in the criminal trial, because the standard
to determine guilt is higher than the standard to determine fault. However,
if a driver is found by a civil jury not to have been negligent, a prosecutor
may be estopped from charging him criminally.
Civil Procedure Rules in the UK.
Civil procedure law, being part of procedural law in general, comprises
the rules by which a court hears and determines what happens in civil proceedings.
In other words, civil procedure is the body of law that sets out the
process followed by courts when hearing cases of a civil nature (civil actions).
These rules govern how a lawsuit may be commenced, what kind of
service of process is required, the types of pleadings, applications and orders
allowed in civil cases, the conduct of trials, various available remedies, and
how the courts and clerks must function.
In the UK, in 1999 the Woolf reform radically overhauled procedure in
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the civil courts. The reforms were brought about to give effect to the Woolf
report, which was produced by a committee chaired by Lord Woolf, the
Master of the Rolls. This report found that the civil justice system was slow,
expensive, bound by archaic procedures, excessively complicated and generally
ill-suited to the needs of clients. The adversarial culture of litigation
meant that unnecessary delays and the deliberate running up of expenses
were often used as a tactic to defeat the other side. In many types of disputes
expensive expert witnesses were routinely produced by each side.
Rather than helping the court to resolve a technical problem, these experts
were seen as on the side of one or other of the parties and were subjected to
partisan pressure by the other party’s lawyers. Lord Woolf`s report concluded
that civil justice was in a state of crisis and recommendations were made
for sweeping changes. Therefore, the Civil Procedure Rules (CPR) were
enacted in 1998 to improve access to justice by making legal proceedings
cheaper, quicker, and easier to understand for non-lawyers.
Civil Procedure in the United States.
Civil procedure in the United States has three distinctive features. First,
it follows an adversarial model of dispute resolution. Parties initiate and
propel litigation in this model, and the judge, historically and at least in
theory, plays the relatively passive role of umpire. The burden is on the
parties to present their grievances and defences. Unlike in so-called
inquisitorial models of dispute resolution, the judge rarely makes
independent inquiries. The burden is also on the parties to prosecute their
grievances and defenses; litigation stops unless the parties pursue it. These
characteristics of the system of dispute resolution place on lawyers a heavy
responsibility for assuring justice and mastering civil procedure.
Second, civil procedure in the United States is dominated by positive
law: codied rules enacted by legislatures or their delegates. In contrast, the
substantive rules of decision taught in the other traditional first year courses
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are more often doctrinal: declared by courts as part of the common law.
One difference between positive and common law lies in the materials
containing the legal rules. The common-law materials are almost entirely
judicial opinions, and the appropriate inquiry is: what rule best ts the case?
In contrast, positive law materials are enacted laws or procedural rules and
legislative history. Emphasis in administering the latter is on their plain
words and (sometimes) legislative intent, in recognition of the superior lawmaking
authority of legislatures and their delegates.
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