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Private prosecutions: an individual’s right

It is a common misconception that only the Crown, government agencies and other public bodies can bring prosecutions.  Individuals also have the right to bring prosecutions privately when they have been the victim of crime.  This important right is contained within section 6 of the Prosecution of Offences Act 1985.  There are a wide range of offences available to someone who wants to initiate a private prosecution, however some offences require the permission of the Attorney General or the Director of Public Prosecutions (DPP) before proceedings can commence.

Lord Wilberforce in Gouriet v Union of Post Office Workers (1978) 3 All ER 70 [1977], stressed the importance of the right to bring private prosecutions:  ‘ The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences… remains a valuable constitutional safeguard against inertia or partiality on the part of authority”.

Private prosecutions are not a new concept – many companies already regularly bring private prosecutions, the most notable being the recent Virgin Media case where three men took part in a large-scale fraud selling set-top boxes which allowed people unlawful free access to Virgin Media’s  cable television channels.  The private prosecution brought by Virgin Media resulted in convictions for all three men.  The RSPCA frequently bring private prosecutions as do the BPI (the British Recorded Music Industry) and FACT (Federation against Copyright Theft).  The private prosecution brought by Stephen Lawrence’s family in 1996 against those suspected of murdering Stephen Lawrence was perhaps the most high profile private prosecution ever brought.

Private prosecutions are not just limited to companies.  If you have been the victim of crime you may feel, in these times of austerity, that traditional methods of redress are either not available to you or if you sought to commence civil proceedings instead, those proceedings would be prohibitively slow and costly. It may be that you feel that certain crimes are not the priority of the police or the Crown Prosecution Service at present. If that is the case, private prosecutions become very important to enabling individuals to act where necessary. Commencing a private prosecution allows a victim to retain control of the proceedings and to actively pursue a conviction against the accused. Sometimes, life-changing events occur which must be resolved, and a private prosecution is one way of doing this.

In order to bring a private prosecution, you can seek the advice of a lawyer who will tell you  whether there is sufficient evidence to launch a private prosecution.  If there is insufficient evidence available, you or your lawyer can utilise the services of a private investigator to obtain further evidence if necessary. It is, again, important to speak to a reputable investigator to ensure the evidence is not illegally obtained.  Once the evidence has been reviewed, and charges decided upon, a prosecution is commenced by ‘laying an information’ at a Magistrates Court. The ‘information’ provides details of the offence alleged and the relevant legislation which creates the offence.  The Magistrates court will then issue a summons, which is served on the accused, along with the date on which they must attend court for their first appearance to face the charges.

The Crown Prosecution Service (CPS) has the right to take over any private prosecution (under section 6(2) of the Prosecution of Offences Act) and either continue with the prosecution or discontinue it.  However, the CPS is only  likely to discontinue the case where there isn’t sufficient evidence to provide a realistic prospect of conviction or the CPS do not deem the prosecution to be in the public interest. For example, a prosecution is not in the public interest if it is likely to damage the interests of justice and if it is vexatious or malicious.  It is therefore very important that prior to commencing a private prosecution, the advice of a lawyer is sought, particularly the advice of an experienced criminal prosecutor. The Prosecutor should have experience in prosecutions and be familiar with the Code for Crown Prosecutors test applied by the CPS, to ensure that the case meets the Code test and to avoid the possibility that the CPS may discontinue the prosecution in the future.

No legal aid
It is important to note that there is no legal aid available for instituting a private prosecution therefore you must be prepared to fund a prosecution yourself. However, you can apply to get your costs back, including investigative costs at the end of the proceedings.  The court can make an order that either the accused pay the prosecutors costs or an order that the costs are paid out of central funds (state funds), irrespective of whether the accused is convicted or acquitted (unless the prosecution was instituted or continued without good case).

Before commencing a private prosecution, the most important thing is that you receive adequate legal advice on the prospects of a conviction, whether your case meets the test in the code for crown prosecutors, whether your require further evidence and if so what that evidence should be, and finally what charges are appropriate in your case.

Tamlyn Edmonds is a barrister and specialist prosecutor at Edmonds Marshall McMahon, a specialist law firm dedicated to private prosecutions.

 

 

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6 Responses to Private prosecutions: an individual’s right

  1. D S Dixon (Barrister) Reply

    June 8, 2012 at 8:00 pm

    In the current climate where for sometimes unfathomable reasons prosecutions aren’t brought, an individual or company’s right to bring a private prosecution is a weapon that should be used more often. There are individuals who misuse the right (the equivalent of a vexatious litigant in civil law) but there are many others who simply do not know of their right!

    It isn’t difficult to bring a case, but a lawyer is probably going to help, particularly if against someone who qualifies for legal aid and therefore is entitled to legal representation. As well as solicitors that can doubtless assist, direct access barristers with their vast court room skills can also assist in bringing such prosecutions.

    It should be borne in mind that it is only in indictable cases where costs can be recovered from the government, but again a lawyer can advise about such matters quickly.

  2. Anonymous Reply

    June 15, 2012 at 2:34 am

    I am sure that more people would come forward to bring a private prosecution if there was any sense that justice would truly be done and in trying to access justice you would not be at risk of losing your home or bankruptcy. The very fact that someone would contemplate a private prosecution is usually indicative that the legal system has already failed them.

    I would dearly love to bring a private prosecution against a judge who deliberately fabricated legal findings and changed witness evidence. Despite five purported legal findings of many unsupported by any evidence, in contravention of long established case law the Court of Appeal falsely claimed there was no error of law and denied leave for permission to appeal ensuring that they avoided having to publicly deal with a judicial scandal and blocking all access to justice and any further legal challenge at the Supreme Court.

    What made the situation worse was discovering that not only had the same Judge escaped censure several years before in an almost idential case of bias and judicial misconduct at the COA but the law says you cannot sue a judge as they are immune from prosecution. Just to add insult to injury I have only just recently found out that the judge was secretly dismissed as a result of what they did in my case. So all the evidence is there and quite indisputable but I can go no where.

    The Lord Chancellor says he cannot intervene in “judicial decisions” even in a case of fabricated findings which is a somewhat convenient and unacceptable loophole that leaves the public wide open to abuse and at the mercy of dishonest judges and those who should know better who cover for them.

    If a member of the public had fabricated evidence referring to documents and events that did not exist they would no doubt find themselves on the wrong end of the CPS for perverting the course of justice and given a lengthy prison sentence. Clearly not the case for judges who can not only abuse the law without fear of censure but are clearly above the law and protected irrespective of any ideological concept of rights to a private prosecution.

  3. Sandra Nixon Reply

    July 19, 2012 at 5:37 am

    The system has to be open to members of the public taking legal action. I found that the system was not set up to deal with a lay person with the result that even though the organisation I took action against were guilty of many ‘crimes’ it was as though the law had been changed when the case was heard. The perpetrators were not brought to task as I imagined they would be. It was fantasy to expect that I would be able to understand procedure and any number of other obstacles to presenting a case which take years for lawyers to learn. Some lawyers are just too clever so let’s not pretend that bringing a case to court can be dome without preparation or knowledge. This of course is where lawyers have the public at their mercy.
    Some take crude advantage of this fact and others do not. The ones who are ethical and live up to expectations of integrity and honesty are not heard above the noise and mess made by those who choose to act in their own interests to the detriment of those who rely upon them, this is their prerogative of course. Hats off to the ethical lawyer.
    I wanted to say, having gone through a 4 year horrendous time whilst trying to obtain justice, that I wish I had found this page before now. I would have at least lost the rose coloured glasses along with that the expectation that I could win on my own steam and I would have been able to negotiate the system rather than going through reams and reams of information and advice.
    I had lost any faith I had in the justice system, and I had quite a lot, and I have now been given a little of my faith in the legal system back.
    You are there for others and that has got to be a good thing.
    People really need to know that there is a way and sadly many do not and suffer in silence. We forget that not everyone is articulate and able
    to negotiate the maze that life can be when trouble strikes.
    regards and more power to you.
    And thank you

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