Raja v Van Hoogstraten

In a civil claim, a subsisting criminal conviction against a non-party is admissible under section 11 of the Civil Evidence Act 1968 and is treated as proving the offence unless the contrary is proved. Mere doubt about the conviction or trial process is insufficient. An acquittal, or a conviction later quashed, does not determine the civil issue. The civil court applies the balance of probabilities, while taking account of the seriousness of the allegation and the cogency required to overcome its inherent improbability. A party’s unexplained failure to give evidence does not shift the burden of proof, but may convert credible prima facie evidence into proof where the party would reasonably be expected to answer it. Unchallenged evidence may be accepted if credible, and adverse inferences may be drawn.

The judgment concerned the preliminary issue in four connected actions arising from the murder of Mohammed Sabir Raja. The claimants alleged that Nicholas van Hoogstraten had recruited the two men convicted of the murder. The issue was tried in his absence after he deliberately failed to attend or obtain legal representation, despite warning that adverse inferences might be drawn.

The court considered the effect of the convictions of the two killers, van Hoogstraten’s acquittal of murder, his subsequently quashed manslaughter conviction, and his failure to give evidence. The central questions were the admissibility and effect of the criminal proceedings in the civil trial and the evidential consequences of his non-attendance.

1. Preliminary issue decided. The court held, on the balance of probabilities, and indeed beyond reasonable doubt if necessary, that Mr van Hoogstraten recruited Mr Knapp and Mr Croke to murder Mr Raja in order to halt the Chancery Action and obtain favourable treatment of the claims. The evidence was overwhelming.
2. Criminal convictions. Under section 11 of the Civil Evidence Act 1968, the subsisting convictions of Mr Knapp and Mr Croke were admissible to prove that they committed the murder. They were to be taken to have committed it unless the contrary was proved. Raising doubts or questions about the correctness of the trial process or convictions did not discharge that burden. The court relied on its earlier decision, which had been upheld by the Court of Appeal.
3. Acquittal and quashed conviction. Mr van Hoogstraten’s acquittal of murder did not determine the civil issue. The civil trial involved a different burden of proof and different admissible evidence. His manslaughter conviction could not be relied on because it was no longer subsisting after being quashed. R v Pendleton concerned reliance on a jury verdict by the Court of Appeal in an appeal against that verdict and did not establish that the quashed conviction could be relied on in this civil trial.
4. Failure to give evidence. The court applied the guidance in R v IRC ex p T C Coombs & Co and Gibbs v Rea. Silence does not shift the burden of proof. In appropriate circumstances, however, it may convert prima facie evidence into proof where the silent party would be expected to answer matters within his knowledge. A credible explanation may reduce or nullify that effect. The absence of any explanation here justified adverse inferences; statements that should have been tested carried little or no weight, and credible unchallenged evidence could be accepted. The guidance in Secretary of State for Health v C was consistent with that conclusion.
5. The court rejected the allegation that the murder was a botched robbery or involved another perpetrator. The threats, motive, character evidence, arrangements for Mr Knapp, payments and accommodation, the hallmarks of a contract killing, and the evidence concerning the missed first shot together established responsibility. The preliminary issue was therefore determined against Mr van Hoogstraten.

The judgment records that the Court of Appeal upheld the earlier ruling that the criminal convictions of Mr Knapp and Mr Croke were binding for the purposes of the preliminary issue. It also records that Mr van Hoogstraten’s manslaughter conviction had previously been quashed on appeal. No appeal from the present judgment is stated.