Overlaps and Undercurrents: The Timing of Tortious and Criminal Actions for the Same Wrong

Abstract:     
This paper traces one key example of the overlap between tort and crime and explains the impact of our disjointed thinking on these two areas. For about 400 years English civil courts have accepted some form of pre-eminence of the criminal law where civil and serious criminal liability co-exist. This is often referred to as the rule that “a trespass merges in a felony.” The paper sets out how this rule was created, how it has evolved and the form it is in now. Having charted the development, the paper moves on to explain why the key stages in that development happened.

The complex and surprising history of the merger rule demonstrates the role of procedural, substantive, policy and mechanical factors in the development of legal rules. It also shows just how important and intricate the interfaces of tort and crime can be.

Number of Pages in PDF File: 30

Keywords: Tort, Crime, Civil Procedure, Criminal Procedure, Legal History, Trespass merging in a Felony, Smith v Selwyn, Higgins v Butcher

JEL Classification: K13

working papers series