A prejudiced rehearsal?

It is not only lawyers that know that the 'burden of proof' in criminal and civil matters is different. But what happens when there are cases running at the same time in both the civil and criminal jurisdictions? Does one become a prejudiced rehearsal of the other?

This is a not uncommon concern in a welfare benefit fraud prosecution where it has also been decided that any overpaid money recoverable because it has been paid following alleged misrepresentation of, or a failure to disclose, the true position. Is failure to challenge the overpayment detrimental to the defence in the criminal case? Will a challenge allow the prosecution to firm up its weak points? And which should come first, the civil case or the criminal one?

The civil appeal will go before a judge of the Social Entitlement Chamber of the Tribunal Service. Recently restructured the tribunal proceedings remain inquisitorial but the new tribunal rules and current case law in this jurisdiction present both a threat and an opportunity for the advocate faced with the decision about how best to represent a client faced with dual proceedings.

New rules, new tactics

The new rules (The First-tier Tribunals (Social Entitlement Chamber) Rules 2008) set out in Rule 2 the overriding objective to deal fairly and justly with all appeals. The parties are required to help the tribunal further the overriding objective and to cooperate with the tribunal process. Obviously this will involve, amongst other things, full disclosure.

The House of Lords has emphasised the cooperative process in this setting. In Kerr v Department for Social Development [2004] 1 WLR 1372 the House confirmed the inquisitorial role of the tribunal but went on to say that the cooperation starts before the tribunal is involved since what is required 'is a cooperative process of investigation in which both the claimant and the department play their part'¦ the department '¦knows what questions it needs to ask '¦the claimant is the one who can and must supply that information.' The House postulates that if this 'sensible approach' is taken then 'it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof.'

This approach '“ largely alien to the criminal lawyer '“ means that some critical thought needs to be given to the legal and procedural options in the civil jurisdiction and to a case strategy that encompasses both jurisdictions.

The Court of Appeal in Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324 (reported on the Upper Tribunal website as R(IS) 4/08) looked at concurrent civil and criminal proceedings and particularly analysed the position where that applies to alleged overpayment cases before tribunals. The court noted that there might be cases where it would be preferable for the appeal to await the outcome of the related criminal prosecution but the decision is dependent on the circumstances of each case, the precise nature of the criminal charges and the issues raised in the appeal. An appellant retains the right against self incrimination in the appeal proceedings and it is accepted that there is an overlap of issues. It was not accepted that the opportunity for a rehearsal of the criminal trial creates a substantial prejudice to the appellant/defendant.

The new tribunal rules (at Rule 5) set out case management powers and these include the ability to hold a case management hearing and the power to deal with any issue in the proceedings as a preliminary issue. A party may apply (under Rule 6) for the tribunal to give a direction in respect of the management of an appeal.

Making the best of the case management option

This legal and procedural position is open to either of the parties to the proceedings to utilise and it is for the parties to consider carefully whether they wish to use the provisions to further either '“ or both '“ of their cases. It is open to the parties to argue before a tribunal at a preliminary hearing for their preferred course of action.

The argument a party puts before a preliminary hearing will depend to a marked extent on a judgement about the strength of the party's case. Both the parties need to ask similar questions. What is the likely outcome of the civil appeal? Will it help or hinder the criminal trial? Is it likely that the tribunal will find as a fact that the overpayment, while the result of a misrepresentation or failure to disclose, was 'innocent' rather than 'fraudulent' and, if so, how will that affect the other proceedings? Is it better to have the criminal trial first in order to avoid the rehearsal the Court of Appeal found was not a substantial prejudice? If so, what are the grounds for making that submission to the tribunal?

It is clear that there is no general rule either way so the case needs to be analysed on the basis of Mote and particular factors identified that may sway a tribunal judge one way or the other.

Increasingly before tribunals parties need to consider carefully the procedure that they seek to have adopted and how the strength of their case affects the task. As with all litigation, inquisitorial or adversarial, the outcome cannot be guaranteed but what can be said with some confidence is that the parties now need a greater awareness of legal and procedural issues than has hitherto been the case in tribunal proceedings.