SMITH V SELWYN [1914]

INTRODUCTION 

Smith V Selwyn [1914] 3 KB 98 is a landmark decision of the English Court of Appeal that entrenched the common law rule requiring the prosecution of a felony as a precondition to pursuing a civil action arising from the same felonious act. The case of 7 April 1914, was an appeal from an order of Lord Coleridge J at chambers and was dealt with by the three judges comprising Buckley LJ, Kennedy LJ, and Phillimore LJ. Re-elected was the principle of felony merger, which goes further than the mere theoretical holding but stops the court from allowing the private individual to take part in the criminal process in this way, so the purpose of the rule is to avoid both the compounding and the stifling of criminal proceedings. This rule, sometimes called the ‘rule in Smith v Selwyn‘, had been a very important rule in common law countries, although it has been heavily criticized and abolished in England and some other countries. The case shows the historical conflict between civil torts and criminal law, which, nevertheless, are based on similar public policy considerations and can be traced back even to the 19th century. 

KEY FACTS 

The plaintiffs were a married couple, the wife being the main victim of the alleged misconduct. The defendant, Selwyn, was the woman accused of fraudulent inducement that she come to a certain place. There he allegedly gave her a drink which was said to be brandy but was actually mixed with a poisonous drug or narcotic that would make her powerless, unable to resist, and insensible. Consumed the wife with the poison and reportedly she was fainting, in which case the defendant unlawfully and indecently assaulted her and had or tried to have sexual intercourse with her forcibly. As a result, she suffered not only physical and mental pain, but also fear of a possible pregnancy, and at the same time was unable to perform her daily tasks.  These actions not only were assault to the person and battery in civil torts but also were felonies according to English criminal law probably combining the characteristics of indecent assault and attempted rape. The plaintiffs had not first taken or started criminal proceedings against the defendant but had this done by way of a civil action for which they asked for damages. There was no evidence that the defendant was prosecuted for the felony, nor was there any appropriate reason for the non-existence of such a prosecution. The matrix of events pointed out the tort side of the story and the criminal side of the case, thus preparing a ground for the application of the felony merger rule. 

HISTORY 

The plaintiffs in the King’s Bench Division brought an action for an assault that was described in the statement of claim and asked for compensatory damages. The defendant sought a stay of the proceedings on the grounds that the claim was based on a felonious act for which no criminal prosecution had been initiated. Lord Coleridge J thus held a hearing on this application at chambers and, presumably, he either permitted or considered the stay which then led to the plaintiffs lodging an appeal with the Court of Appeal. An appeal against that decision was heard on 7 April 1914 with Buckley LJ, Kennedy LJ, and Phillimore LJ as the judges. The Court of Appeal in its decision took a very strong position on the question of bringing a civil action without the existence of a criminal case by reference to the cases Roope v D’Avigdor (1885) 17 QBD 93 and Ex P Ball; In re Shepherd (1879) 10 Ch D 667. The opinion was given by the court to stay the civil proceedings unanimously. The court’s intervention in this manner from the procedural aspect depicts its function in the enforcement of public policy through interlocutory orders. 

LEGAL ISSUES 

The main legal question was whether the civil case of damages following a felonious act could be continued without prior or simultaneous prosecution of the defendant for the felony, and non prosecuted only if a reasonable excuse for the non prosecution was given. This led to the application of the felony merger doctrine, which holds that the civil wrongs become combined with the public wrong of a felony, thus, the ability to seek private remedies is suspended until the public justice is completed. 

Some of the attendant legal issues revolved around which response would be most suitable from the judiciary perspective: the claim could be dismissed outright or only a stay of proceedings could be granted and the issue of individual rights in civil litigation versus the state’s interest in the prosecution of crimes. The matter also pointed out issues regarding the ambit of ‘reasonable excuse’ like, for example, the impossibility of the case to be prosecuted and the public policy reasons for criminal processes taking precedence over civil ones first. These issues were all common law issues without statutes regulating the subjects at that time. 

ARGUMENT OF BOTH PARTIES 

Despite that the reported judgments do not provide a comprehensive detail of the oral arguments, one can understand some aspects of the court’s thinking from its discussion. The plaintiffs probably argued that the lawsuit should be allowable on its own, pointing out that the tortious remedies were of a different kind and the victim was entitled to immediate reimbursement of personal injury. They might have suggested that there is neither statute nor common law that prohibits doing two or more proceedings at the same time and that the public policy should not create barriers to civil justice. This is particularly true when the crime prosecution is not solely controlled by the plaintiff. The opposite stance was held by the defendant who, referring to the traditionally accepted principle, contended that a stay or dismissal should be granted. According to this principle, civil claims going on as a result of the subject of the court may cause private settlements to ‘stifle’ or worsen the felony, and hence, public justice is at risk of being ‘stifled’. The defendant availed himself of instances like Crosby v Leng (1810) 12 East 409 and Stone v Marsh (1827) 6 B & C 551 to say that due to the merger of the civil wrong into the felony, the tort action was suspended until the onset of criminal proceedings or when the latter was excused. This approach put the societal interest of punishing crimes ahead of individual compensation, at the same time it cautioned that if civil actions were not strictly controlled offenders could try to trick the criminal justice system through money settlements. 

COURT’S REASONING AND FINAL JUDGMENT 

The Court of Appeal on the whole was of the view that the civil action was not maintainable without the felony being prosecuted or the reasonable cause demonstrated. Delivering the principal speech, Buckley LJ, confirmed the rule, which was deeply rooted in precedent, whereby felonies were public matters only and therefore before private remedies were to be utilized, public prosecution was an absolute necessity to prevent the concealment or

compounding of crimes. He gave examples from history to demonstrate that the civil wrong ‘merges’ into the felony, and the halting of the claim for a while is ‘on the flight.’  Kennedy LJ agreed with Buckley LJ, stating further that initiation of civil actions was quite problematic from the aspect of legal ‘stifling’ of the felony as it allowed the parties to conclude settlements that might impose barriers for the launch of criminal complaints. Although the condition pointed to felonies only, not misdemeanors, and the suspension was not total but depended on whether a prosecution was in place as he explained the position of the rule. Phillimore LJ referred to the victim or the public authorities as those to whom the responsibility to prosecute rested and, in the absence of such, the court’s duty was to engage and implement public policy. The Judges here differentiate the kinds of cases in which the defendant´s death or escape are examples of excuses permitting immediate trial without prosecution. Eventually, the court was of the view that continuation of hearings on the present statement of claim should be stayed until the defendant was prosecuted, thus granting the plaintiffs leave either to criminally sue or amend their claim. This decision reaffirmed the ruling as obligatory though it left the civil claim open after the prosecution. 

REFERENCE(S): 

• Smith v Selwyn (1914) 3 KB 98(CA) 
• Roope v D’Avigdor ( 1885) 17 QBD 93 
• Ex P Ball; in re Shepherd (1897) 10 Ch D 667 
• Crosby v Leng ( 1810) 12 East 409 
• Stone v Marsh (1827) 6 B & C 551