R.V

Privy Council: No collateral attack through civil action 

The recent judgment of the Judicial Committee of the Privy Council in the case of Hurnam v Bholah [2010] UKPC 12, last Monday 12th July, which has gone barely unnoticed here, dismissing the case brought by Dev Hurnam against the Bholah brothers, constitutes an important legal milestone which henceforth closes the door to any attempt to make use of civil proceedings to mount a collateral attack on a decision in a criminal case. It also signals to the authorities that they should do away with the obsolete rule that a conviction obtained in a criminal case cannot be used as evidence in a civil case. In that context the law has evolved both in the UK and in France. Mr Hurnam, as we may recall, was found guilty by the Intermediate Court of a charge of conspiring with his former client to fabricate an alibi. The decision of the Intermediate Court was upheld by the Privy Council. Following the verdict of the Privy Council, Mr Hurnam, by plaint with summons dated 28 March 2008, started civil proceedings against the Bholah brothers for a judgment condemning and ordering the two brothers to pay damages. The damages represent the prejudice, which he alleges, he suffered as a result of Soobash Bholah falsely saying that his then Counsel, Mr Hurnam, had told him to lie in order to set up an alibi that he had been at the vehicle testing centre at the time of the bank robbery. Likewise, he claimed damages against the other brother for prejudice which he suffered as a result of the other brother saying that Mr Hurnam had taken money which he knew to be the proceeds of crime.

The two brothers did not take part in the proceedings. The civil case entered against the two brothers was dismissed by the District Magistrate. Mr Hurnam appealed to the Supreme Court but same was dismissed on the ground of abuse of process. He then appealed to the Privy Council.

Before the Privy Council, the State intervened in the matter arguing that it is an abuse of process for the Appellant (Mr Hurnam) to raise civil proceedings whose purpose is to mount a collateral attack on his conviction in criminal proceedings before the Intermediate Court, a conviction which was affirmed on appeal by the Privy Council.

In advancing that argument, reference was made to the well-known decision of the House of Lords in Hunter V Chief Constable of Midlands Police [1982] AC 529. In Hunter, the Birmingham Six case, the accused were held beyond doubt not to have been subjected to violence before they made statements which were admissible at the trial. Hunter then brought a civil action of damages against two chief constables for assault causing them physical injuries which they alleged had been inflicted on them by police officers when they were in custody. The case was dismissed on the ground that the civil action constituted an abuse of process.

Lord Diplock described the abuse of process in this way: “The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of Justice for the purpose of mounting a collateral attack upon a final decision against the intending Plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending Plaintiff had a full opportunity of contesting the decision in court by which it was made (…) it would call for a degree of credulity too extreme to be expected even from judicial members of your Lordships’ House to recognize that the dominant purpose of this action… has not been to recover damages but is brought in an endeavour to establish long after the event when memories have faded and witnesses may be difficult to trace, that the confessions on the evidence on which they were convicted were induced by police violence.”

Interestingly, the Committee makes reference to the prevailing legal principle under French law. In that context, Mauritius lags behind the developments that have occurred both in UK and In France. French law permits the results of criminal cases, whether convictions or acquittals, to be used in evidence in civil cases. In the UK, section 11 of the Civil Evidence Act 1968 provides that a conviction is prima facie evidence in civil proceedings that the person did commit the offence.

Finally, the Judgment highlights the danger that such collateral attacks may represent where a witness has been given immunity to testify in a criminal case and is subjected, subsequently, to a civil action. The immunity would serve no purpose if witnesses, for fear of being sued for something they have to say, refrain from telling the truth. 

R.V.

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