This Briefing Paper sets out an introduction and background to the concept of presumed liability.
What is liability?
The concept of liability is a very significant part of law given that a person who is deemed ‘legally liable’ is responsible for their behaviour, actions and / or omissions (the ‘behaviour’) and any issues arising from it. Where a determination of liability is not straightforward, disputes may be resolved by the issuing of proceedings.
The two main branches of law, namely criminal and civil, differ in their approach to the behaviour, although the same behaviour can be dealt with under both branches of the law (e.g. an assault on a person might result in both a criminal charge for assault and a civil case for damages for the injuries suffered).
In criminal cases, where a person is considered to have broken the law (thus committing an offence), they are prosecuted. In Jersey the prosecutor is Her Majesty’s Attorney General (the “A.G.”) and the case will be reported as A.G. -v- A. N. Other (the “defendant”).
Civil cases result from disputes between individuals and / or organisations, with the party bringing the matter to court known as the plaintiff. The plaintiff files a claim before the court which outlines the case against the defendant and asks the Court for a remedy. Neighbour disputes, personal injury claims and medical negligence are all examples of potential civil cases.
What is the ‘Burden of Proof’?
In any court proceedings the onus of proving or disproving the case, known as the ‘burden of proof’, falls on one of the parties. In most instances the burden of proof rests with the party bringing the case, although there are exceptions.
What is meant by ‘Standard of proof’?
Any party (be it the prosecutor or the plaintiff) must prove their case in court to be successful; and the level of proof, known as the ‘standard of proof’ differs between criminal and civil cases. In simple terms the prosecution (in a criminal case) must prove their case ‘beyond reasonable doubt’ whereas the plaintiff (in a civil case) must prove their case on ‘the balance of probabilities’. The standard of proof, therefore, is lower in a civil case and this might result in a plaintiff being successful in civil court proceedings despite an unsuccessful prosecution in a criminal court, although both cases are based on the same behaviour or incident.
In certain countries (not the United Kingdom or Jersey), the concept of presumed liability has been introduced in relation to road users, whereby the less vulnerable road user is ‘presumed liable’ following a road accident; for instance, a lorry driver would be presumed liable for an accident involving a cyclist because the lorry driver is less vulnerable than the cyclist. In civil law it would result in the burden of proof shifting from the plaintiff (in this example, the cyclist) to the defendant (in this example, the lorry driver). If the defendant is unable to prove ‘on the balance of probabilities’ that the accident was not their fault, then the Court will find in the plaintiff’s favour.
In some jurisdictions, a system of ‘stricter liability’ in in place, namely “the system which presumes injured pedestrians and cyclists qualify for civil compensation without having to prove fault on the part of the driver”.
In response to a question in the States Assembly on 19th January 2021 (Oral Question 19/2021), Her Majesty’s Solicitor General stated, when discussing presumed liability:
“It is a civil law concept, not a criminal law concept; that means it is something which is intended to make it easier for a person injured in a road accident to sue the other person for damages”
and he further explained:
“Presumed liability is not part of the civil law of Jersey. If I am a pedestrian, for example, injured by a motorist and I sue the motorist for damages, it is for me to prove that he was to blame.”
The Solicitor General was asked whether the priority given to pedestrians and cyclists in the network of Green Lanes in Jersey had any effect on liability. The response was that it did not – should an accident occur in a Green Lane, the onus would remain on the injured party to evidence that the motorist was to blame.
Presumption of Innocence
The concept of ‘innocent until proven guilty’ is a fundamental cornerstone of criminal law in Jersey (and the United Kingdom) and it has been stated that the introduction of presumed liability in criminal law would run contrary to this concept. This was reported by the Solicitor General in response to Oral Question 19/2021:
“There is no concept with criminal offences of presumed liability, which would amount to saying to a defendant, would it not: “You are presumed to be guilty, unless you can prove you are innocent”? That concept, if it were imported into our criminal law, would not only run contrary to hundreds of years of the approach that it is for the prosecution to prove a charge but it is likely it would be wholly incompatible with Article 6 of the Convention on Human Rights, which is the fair trial rights and that mandates that and I quote:
‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty, according to law’.”
What is the outcome of Court Proceedings?
In a criminal case in Jersey the AG brings a prosecution against a defendant if there is sufficient evidence to do so and if a prosecution is in the public interest. The Law will set out the maximum punishment for an offence unless the offence is a customary law one when the punishment is “at large”. The punishment will vary according to the offence and the facts of the case.
The plaintiff in a personal injury claim will ask the Court to make a finding of negligence and to make a decision about the amount of monetary compensation, known as damages, which should be paid to return them to the position that they were in before the incident leading up to the injury. In other civil cases, such as an application for judicial review of a ministerial decision, the Court might be asked to make other orders such as an order that the minister take a decision again.
• Stricter Liability in Europe, a report produced further to a survey by RoadPeace and the European Federation of Road Traffic Victims
• Ministerial Response to the E-petition, ‘Change the law to protect all vulnerable road users - Introduce Freddie’s Law’