Distinction between Crime & other wrongs – at Common Law

Tanya Agarwal, Research Associate

Penal law of ancient communities is not the law of crimes: it is the law of wrongs. The person injured proceeds against the wrongdoer by an ordinary civil action and recovers compensation in the shape of money damages, if he succeeds. – Sir Henry Maine

In early law there was no distinction between criminal and civil wrongs. The two had been called a vicious intermixture ((Sir Federick Pollock and FW Maitland, The History of English law before the time of Edward I, vol II, second edition, 1911, p 465)). However an attempt was made by Scholars like Jeremy Bentham, Sir William Blackstone, and John Austin to distinguish ‘crime’ from ‘civil’ wrong. Accordingly, ‘private wrong’ affecting the civil rights of individuals was perceived as a ‘civil wrong’ whereas a ‘public wrong’ or breach and violation of public rights and duties owed to the whole community crime was termed as ‘crime’ ((Sir William Blackstone  Commentaries on the Laws of England,[ 17th edn. University of Chicago Press 1830].)). On this basis, notion of private wrong can be extended to encompass not only torts but also other kinds of civil laws such as contracts, which is also concerned with wrongs, also not to the whole community at large, but to individuals (groups of individuals or legal persons) qua contractual parties ((John Gardner, “Torts and Other Wrongs”, Florida State University Law Review 39 (2011): pp. 43-64 at p. 46)).

Distinction between Crime and Tort- Is it a Functional or/and Structural?

‘Tort law prices, while criminal law prohibits ((‘Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law’ (1991) 71 Boston ULR 193.)).’

At early common law, a victim could pursue justice for the same wrongful act either through a forerunner of criminal law or through a forerunner of tort law ((David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U.L.REV. 59, 59 (1996).)). However, the objectives of the criminal law and law of tort are essentially disparate. Criminal law is public, punitive law, which exists to maintain security through the control of certain forms of behaviour ((Williams, ‘The Definition of Crime’ (1955) CLP 107.)). The law of tort, on the other hand, is concerned with the identification of personal rights and the award of remedies to vindicate those rights. This has been recognized by Lord Scott in Ashley v Chief Constable of Sussex Police (([2008] UKHL 25, [2008] AC 962, at [17]. See also Lord Carswell, at [76].))as:

‘this plea for consistency between the criminal law and the civil law lacks cogency for the ends to be served by the two systems are very different. One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society… The function of the civil law of tort is different. Its main function is to identify and protect the right that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights.’

The distinction between crime and tort law is not only restricted to functional sense. The structure and nature of legal proceedings in criminal and tort law are quite dissimilar.

Firstly, the state prosecutes violations of criminal law. A victim’s consent is neither necessary nor sufficient for a prosecution to be brought. In tort law, by contrast, the victim decides whether to bring a tort claim and is free to choose not to do so ((John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 MD. L.REV. 364, 402-03 (2005); Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695 (2003).)). Secondly, tort law typically requires harm as a prerequisite to a remedy. By contrast, tort law mainly provides a remedy for harmful acts, not for acts that create risks of future harm, and not for acts that are considered immoral but not harmful ((Id at 3)).

Tort and criminal law may be further distinguished in terms of standard or burden of proof. In tort law, the plaintiff’s case must be affirmed by a preponderance of evidence, i.e. the plaintiff must persuade the judge or jury that his or her version of the facts is more likely than not and that he or she is entitled to judgment. This degree of proof is sometimes called presenting a prima facie case, or “crossing the 51 percent line”, because the plaintiff must out prove the defendant by more than half the evidence ((In some cases, such as those involving misrepresentation, fraud, intentional infliction of emotional distress, and probate contests, the plaintiff must prove his or her case by clear and convincing evidence, which is a higher standard and more difficult to meet that a mere preponderance)). By contrast, in criminal law the prosecutor must prove the case is beyond a reasonable doubt meaning that the judge or jury must believe the defendant’s guilt without significant reservations. This burden of proof is much more difficult than either of the proof levels required in tort cases.

Lastly, criminal law is statutory. The doctrine of common-law crimes is largely defunct. By contrast, tort law remains mainly a set of common-law, judge-made doctrines (although the statutory overlay is increasing). Apart from this, there are certain conducts that cause same kind of harm as a criminal act, but nevertheless, does not receive criminal punishment. That is, certain torts and contract breaches only receive monetary damages while the equivalent crime, causing the same harm, receives criminal punishment.


In spite the dissimilarities discussed in this article it won’t be appropriate to say that tort law and crime are mutually exclusive. However, certain conduct creates both tort and criminal liability ((Nathan Isaac Combs, Civil Aiding and Abetting Liability, 58 VAND.L.REV. 241, 250 (2005).)). For instance, the act of taking someone’s property would constitute theft, a crime, and conversion, a tort breach ((Thomas Colby, Clearing the Smoke From Phillip Morris v.Williams: The Past, Present, and Future of Punitive Damages, 118 YALE L.J. 392, 424 (2008).)). Apart from this, there are some instances in which people have brought civil claims in an effort to encourage prosecutions in criminal law. For example, the family of a woman who was killed by her former boyfriend succeeded in having him branded as a killer in a successful civil claim for assault and battery heard in the High Court in 1998. The Crown Prosecution Service had decided not to prosecute ((Francisco v Diedrich (1998) The Times, 13 April)).

To enquire whether an act is a crime or a tort in Sir James Stephen’s opinion is no wiser than it would be to ask of a man “Is he a father or a son? For he may be both”.  However it’s obvious that we cannot make a sweeping generalization that ‘universally every crime is a civil injury’. We should bear in mind that torts and crimes are complementary to each other and they cannot be detached from each other because the same act can be viewed from different perspectives.

The web of the law should, be conceptually seamless and a unified institution which works in essential harmony. But that harmony can tolerate difference; it is ‘intolerable fissures’ which are unacceptable ((Hall v Hebert (1993) 101 DLR (4th) 129, 165, citing Weinrib (1976) 26 UTLJ 28, 42)).