4.1 Criminal law and civil law

One of the most common classifications of laws, and one that is used by many legal systems, is the distinction between criminal and civil law.

Criminal law sets out which actions are forbidden within society, and, if the actions occur, what punishment will then follow. Criminal law focuses on creating laws to protect the whole society and punish anyone who breaks those laws.

Civil law is used to settle disputes between individuals (which can include companies and corporations). At the end of a case, the party at fault has to pay compensation or comply with another suitable remedy such as an injunction.

Both the standard and burden of proof differ between criminal and civil matters. The standard of proof is the degree to which a party must prove its case to succeed; the burden of proof (sometimes called the onus of proof) determines where the responsibility for ‘proving’ a case lies – usually with the person or organisation bringing the case.

The standard of proof in criminal litigation means that the State must prove the defendant’s participation in the crime ‘beyond a reasonable doubt’. This is usually expressed as asking a jury, for instance, to be ‘satisfied so that you are sure’, or ‘virtually certain’, of the defendant’s guilt. It is unofficially described as ‘the 99% test’. In civil litigation, the claimant wins if the preponderance of the evidence favours them; this is unofficially referred to as ‘the 51% test’, or ‘the more likely than not test’.

In criminal litigation, the burden of proof is always on the State. This means that the State must prove that the defendant is guilty; the defendant is assumed to be innocent unless proven otherwise. In civil litigation, the burden of proof is initially on the person who brings the action.