Aggravated, Exemplary and Restitutionary ... - Law Commission

Are we concerned about ‘conviction’ or particular punishments?
1.106 A criminal court is likely to have a large range of possible methods of dealing with
a particular offender, following his or her conviction for an offence. They may
include an absolute or conditional discharge, binding over, a community service
order, a fine or a prison sentence. In our view, the discretionary or absolute bar to
an award of punitive damages must apply whatever method of disposition has been
selected by the criminal court. The important point should be that the defendant
has been convicted for the conduct which is alleged to justify an award of punitive
damages.
1.107 Some may argue that where a defendant has been absolutely discharged following
conviction, there is no risk that he or she will be ‘doubly punished’ if he or she is
subsequently held liable to pay punitive damages for the same conduct. And, so
the argument would run, if he or she will not be doubly punished, there should be
no bar to an award of punitive damages. We disagree. As we shall see, the
justification for a bar to a claim to punitive damages following a criminal
conviction is not just that it avoids the risk of ‘double punishment’; it is also that a
civil court should not generally be permitted to reopen the question, which has
been answered by the criminal court, of what is an appropriate response to the
offender/wrongdoer’s conduct. This is an argument for respecting the criminal
court’s choice of response, regardless of its nature.
1.108 We would point out that, in any case, this point is never likely to be problematic in
practice. An absolute discharge will usually reflect the triviality of the offence, or
the low culpability of the offender, or that he or she had good reason (not
amounting to a legal defence) for behaving as he or she did. In those
circumstances it will be difficult, if not impossible, for a plaintiff successfully to
demonstrate that the same conduct showed a ‘deliberate and outrageous disregard’
of his or her rights. And if he or she cannot do so, no award of punitive damages
can be made.
1.109 One practical problem is that section 1C(1) of the Powers of Criminal Courts Act
1973 provides that, subject to specified exceptions, where an offender has been
absolutely or conditionally discharged following conviction for an offence:
... [the] conviction ... shall be deemed not to be a conviction for any
purpose ...
1.110 Without more, s1C(1) could mean that any principle in our draft Bill which is
expressed to apply where the defendant has ‘been convicted of a criminal offence’
would not apply if the defendant was absolutely or conditionally discharged. This
would be unfortunate. We have therefore recommended 687
that section 1C of the
Powers of Criminal Courts Act 1973 must be ignored by a court when it applies
the principle stated in recommendation (21)(a), which we explain below, that
punitive damages must not usually be awarded if, at any time before the decision
falls to be made, the defendant has been convicted of an offence involving the
conduct for which the punitive damages are claimed.
687 See para 5.44, recommendation (21)(a), above.
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