By Claire de Than and Jesse Elvin, City University London

c.de-than@city.ac.uk and jesse.elvin.1@city.ac.uk

 

In the English legal system, most prosecutions for criminal offences are brought by the Crown Prosecution Service (CPS), the prosecution service for England and Wales created in 1986 by section 1 of the Prosecution of Offences Act 1985. However, this Act did not abolish the historical right to bring a private prosecution: on the contrary, section 6(1) of the 1985 Act expressly preserves it, subject to certain controls. Thus, private prosecutions still occur today. 

What exactly is a private prosecution? As the CPS puts it, “[a] private prosecution is a prosecution started by a private individual who is not acting on behalf of the police or any other [state] prosecuting authority or body which conducts prosecutions’.[1] The lay perception about private prosecutions is that they are very rare, and are brought by aggrieved victims of crime who have not received justice through a state prosecution. It appears that both aspects of that perception are incorrect: there may well be thousands every year, and the vast majority appear to be brought by organisations representing the commercial interests of their members. For example, the Football Association brings prosecutions in relation to the licensing of broadcasting of football matches, the Royal Society for the Prevention of Cruelty to Animals prosecutes animal cruelty offences, the Licensed Taxi Drivers’ Association has prosecuted unlicensed drivers, and a variety of organisations prosecute criminal infringements of intellectual property law. Various commonwealth countries also retain mechanisms for private prosecutions; for brevity’s sake, our focus here is on the English legal position.

There are no official statistics on the prevalence of private prosecutions in England and Wales; there is not even a duty to inform the state of a private prosecution having been commenced. Thus, it is impossible to be sure about their exact extent or the proportion of private prosecutions brought by individuals, as opposed to commercial or other private organisations. Nonetheless, the information that is available makes it clear that private organisations frequently bring private prosecutions for criminal offences in order to protect their interests or goals, and that some of these organisations work in partnership with state agencies such as local councils and police forces in relation to certain law enforcement matters. FACT, the Federation Against Copyright Theft, is a primary example of such a private organisation. Its publicity materials state that it ‘works closely with Police, Trading Standards, HM Revenue & Customs, UK Border Agency, Serious and Organised Crime Agency and other agencies in the UK and globally’.^[2] It is generally impossible to be sure about the precise nature of this close working relationship between private organisations and various state agencies because the relevant information does not appear to be in the public domain. However, there are many illustrations of it. These include the creation of:

‘A new police unit dedicated to combating film piracy and the organised criminal networks sustaining the manufacture and distribution of counterfeit film product is launched … [in 2006] by the … [Metropolitan Police Force’s] Economic and Specialist Crime Command, in partnership with the Federation Against Copyright Theft.’^[3]

The Alliance against Intellectual Property Theft, ‘a coalition of trade associations and enforcement groups’ that includes organisations such as the British Phonographic Industry,^[4] stated in 2006 that ‘information sharing [between the public sector and the private sector] is already taking place and delivering tangible results’ in the context of intellectual property crime (Alliance against Intellectual Property Theft 2006). However, it appears that co-operation between public and private organisations goes well beyond information sharing in some privately-prosecuted cases, with private prosecutors performing the functions of expert witness or interviewer.

There are many arguments for and against the existence of private prosecutions, and of public-private cooperation in this field, which we will examine in detail in a series of forthcoming articles. They may be seen as an important means of championing the rights of victims of crime, or as a risk to the rights of defendants. But whatever their merits, it is time to look again at the monitoring of and safeguards for, all private prosecutions within the criminal justice system. There have not only been changes in the nature of private prosecutions from their historical origins; there is now also a need to revisit the procedures for such prosecutions in the light of developments both in the rules which apply to all aspects of prosecutions brought by the state, and in human rights law. Different rules and procedures apply where the prosecutor is private rather than a state body. The divergence in the two forms of prosecution has meant that there have been convictions in cases where the state had declined to prosecute, at least partly through doubt whether the suspect’s conduct constituted a criminal offence under English law[5]. As we will argue elsewhere, a specific code of conduct may be needed to maintain important values such as equality of arms in private prosecutions, and to ensure that the state lives up to its international obligations in relation to both the rights of victims of crime and the rights of potential defendants.

Further reading:

R (On the Application of Gujra) (FC) v CPS [2012] UKSC 52

L. Leigh, “Private Prosecutions and Diversionary Justice” [2007] Criminal Law Review 289