Civil liability for a criminal harm?

In a determination passed down by Sheriff K. J. Campbell QC in December 2021, and published in January 2022, (AB v Sean Diamond [2022] SC EDIN 4), the Scottish National Personal Injury Court has ordered the defender in a civil rape case to pay the pursuer damages of £119,250.

The pursuer, AB, had originally brought a civil damages claim after the criminal case against the defender, Sean Diamond, was found ‘not proven’ by a jury at Edinburgh High Court in 2017. The civil action was initially undefended when it was brought in 2018, however, the defender later applied to have the Court’s decision to automatically award damages recalled. The hearing (or ‘proof’) for the civil case eventually took place in September 2021, with both parties appearing to give evidence.

Sheriff Campbell’s judgment has been described as a ‘landmark’ decision, due to being the first case in modern legal history that a Scottish civil court has awarded damages for rape following an acquittal at a criminal trial.

The onus of proof

In a Scottish civil court, the pursuer is required to prove the case against the defender ‘on the balance of probabilities’ i.e. more likely than not. In contrast, the Crown in a criminal case requires to prove that the accused committed the crime alleged ‘beyond reasonable doubt’, which is more difficult to establish. This is particularly so in cases concerning sexual assault where additional hurdles, such as the evidential requirement of corroboration and the controversial potential verdict of ‘not proven’, stack the odds against the complainer. 

The civil case

It was for the Court to decide on the issue of whether consent had been given, or whether the defender reasonably believed it had been given, by the pursuer. 

In his written decision, Sheriff Campbell QC explained that the pursuer’s version of events was to be preferred on the basis that the evidence given by a friend of the pursuer, and two police officers who were present in the aftermath of the alleged assault, were credible indications that the pursuer had been in a state of distress which could not be reasonably associated with consensual intercourse. Similarly, the Court dismissed a suggestion by the defender that earlier romantic interaction between the parties, or the absence of vocal objection by the pursuer, was sufficient to indicate consent to later sexual intercourse. The pursuer’s case was also supported by medical evidence, particularly that of a clinical psychologist, which highlighted that the pursuer’s adverse psychological response to the event was entirely in keeping with the presentation of victims of sexual assault.

Damages

While the pursuer maintained that the civil case was about achieving justice in the wake of the defender’s criminal acquittal, Sheriff Campbell noted in his judgment that the case was “not an appeal against the decision of a jury in properly constituted criminal proceedings, but it is a separate vindication of civil rights”, yet “damages in an action about personal injuries can only ever be an approximation in money’s worth for harm suffered”. He considered the profound and life-altering impact of the events on the pursuer, awarding non-financial damages (or ‘solatium’) to the pursuer solely on the basis of the pursuer’s psychological injuries. Sheriff Campbell considered further damages for impact on the labour market and loss of earnings, however, these were not awarded on the basis of a lack of evidence to support such compensation. It is important to note, however, that damages under these heads of claim are open to pursuers who have occasioned employment-related loss as a result of a civil harm.

How we can help

If you believe that you have a claim concerning sexual abuse/assault, whether historical or recent, it is important that you seek legal advice. Our litigation solicitors endeavour to handle cases such as these with the utmost sensitivity, whilst striving to ensure that our clients do not unnecessarily relive their trauma. We will also outline all of your options in a clear and straightforward manner.

If you would like any advice or assistance with an application to Redress, please do not hesitate to contact our litigation department and one of the experienced solicitors will be able to assist you.