Private prosecution
Encyclopedia
A private prosecution is a criminal
proceeding initiated by an individual or private organisation (such as a prosecution association
) instead of by a public prosecutor
who represents the state
. Private prosecutions are allowed under common law
, but have become rare in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals.
In the Federal Magistrates Court, Family Court of Australia, or the Family Court of Western Australia, an on-line form exists to commence such proceedings which can be downloaded, completed and filed.
In the Supreme Court of Western Australia 0 55, R 4 (Order 55, Rule 4 of The Rules of the Supreme Court (WA) 1971), either an Originating Summons (Form No.75 as is an ex-parte application) or Originating Motion (Form No.64) must be filed specifying the alleged contempt, and personally served on the alleged contemptor previous to a hearing before a judge sitting in chambers unless the court orders otherwise: O 55, R 2.
If the alleged contempt occurred in relation to any specific case, the Forms are required to be filed under the heading of the parties for that specific case; or if it is not alleged to have been committed with reference to a particular proceeding, shall be entitled “The State of Western Australia against” the contemnor (naming him) ex parte the applicant: O 55, R 5.
That statute is called the Provincial Offences Act. The Act is divided into several categories called Parts for dealing with various types of offences such as traffic and parking tickets which are only issued by peace officers and municipal by-law enforcement officers, and more serious offences which are created under other provincial statutes, for example, the Corporations Act.
. They are governed by different rules in the different jurisdictions.
In England and Wales
, the Crown Prosecution Service (CPS) is the primary prosecuting authority with a discretionary power to take over any private prosecution. The CPS must apply a two part test of sufficiency of evidence
and public interest
before making a decision to take it over for the public good or leave it as a private prosecution.
The CPS can also prevent a private prosecution from continuing by taking it over and then discontinuing it. The CPS will do this only where there is not enough evidence to make a proper case or where a prosecution is against the public interest or where a prosecution could cause an injustice. In reaching this decision, it must balance the public good against a duty to preserve an individual's right to prosecute under the Prosecution of Offences Act 1985.
When taking over any private prosecution, the CPS may direct the police to conduct more investigation. This used to ensure that the best available evidence was placed before the court, as further trials were generally excluded by the principle of double jeopardy
, until it was abolished by the Criminal Justice Act 2003
.
and require special circumstances surrounding the crime to be evident. Leave to prosecute must be obtained by granting of a Bill of Criminal Letters by the High Court of Justiciary
. Within the 20th century, only three such prosecutions were made.
, public officials came to dominate the prosecution of crimes. However, privately funded prosecutors constituted a significant element of the state criminal justice system throughout the nineteenth century. The use of a private prosecutor was incorporated into the common law
of Virginia
and is still permitted there. Private prosecutors were also used in North Carolina
as late as 1975.
's To Serve and Protect
lauds the role of private prosecutors, often employed by prosecution association
s, in serving the needs of crime victims in England. Radical libertarian
theory holds that public prosecutors should not exist, but that crimes should instead be treated as civil tort
s. Murray Rothbard
writes, "In a libertarian world, there would be no crimes against an ill-defined 'society,' and therefore no such person as a 'district attorney' who decides on a charge and then presses those charges against an alleged criminal."
Private prosecution is sometimes regarded with suspicion as a potential avenue for vexatious or malicious prosecution
. Okagbue writes that the most useful control against such abuses is the power of the court to refuse to allow the case to proceed where it is of the opinion that there is not enough evidence to support the charge. The cost of private prosecution, including potential civil liability for malicious prosecution, can also deter frivolous prosecutions.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
proceeding initiated by an individual or private organisation (such as a prosecution association
Prosecution association
A prosecution association was an organization of citizens, typically in the same community, who paid dues to cover one another's costs of privately prosecuting offenders should a crime be committed against them....
) instead of by a public prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
who represents the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
. Private prosecutions are allowed under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, but have become rare in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals.
Procedure in Australia
A private criminal prosecution for contempt of court can be commenced against a party in Australia in the Federal Magistrates Court, the Family Court (and the Family Court of Western Australia - the only jurisdiction with a state based Family Court) or the Supreme Court of a State or Territory.In the Federal Magistrates Court, Family Court of Australia, or the Family Court of Western Australia, an on-line form exists to commence such proceedings which can be downloaded, completed and filed.
In the Supreme Court of Western Australia 0 55, R 4 (Order 55, Rule 4 of The Rules of the Supreme Court (WA) 1971), either an Originating Summons (Form No.75 as is an ex-parte application) or Originating Motion (Form No.64) must be filed specifying the alleged contempt, and personally served on the alleged contemptor previous to a hearing before a judge sitting in chambers unless the court orders otherwise: O 55, R 2.
If the alleged contempt occurred in relation to any specific case, the Forms are required to be filed under the heading of the parties for that specific case; or if it is not alleged to have been committed with reference to a particular proceeding, shall be entitled “The State of Western Australia against” the contemnor (naming him) ex parte the applicant: O 55, R 5.
Canada
Canada is a federation and therefore has both federal and provincial offences which can be privately prosecuted. Federally, there are Criminal and statutory offences, and provincially there are provincial and municipal.Criminal offence procedure for private charges
Very basically, a citizen or organization approaches a justice of the peace to present evidence on each element of the alleged offence. The justice then sets up a hearing with a Judge to determine whether there is evidence on each element of the offence, and if approved, and if the Crown does not intervene and terminate the charge, called Staying the charge, then it is allowed to proceed to and through court via the criminal procedure.Provincial offence procedure for private prosecution
Each province in Canada deals with private prosecutions of provincial offences in their own way. Below is a list of the various provinces and how private prosecutions are dealt with in them.Ontario
In Ontario, the citizens voted on the creation of a statute which outlines the procedures involved in both private and public prosecutions.That statute is called the Provincial Offences Act. The Act is divided into several categories called Parts for dealing with various types of offences such as traffic and parking tickets which are only issued by peace officers and municipal by-law enforcement officers, and more serious offences which are created under other provincial statutes, for example, the Corporations Act.
United Kingdom
Private prosecutions are permitted in the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. They are governed by different rules in the different jurisdictions.
England and Wales
In the early history of England, the victim of a crime and his family had the right to hire a private attorney to prosecute criminal charges against the person alleged to have injured the victim. In the 18th century, prosecution of almost all criminal offences was private, usually by the victim.In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, the Crown Prosecution Service (CPS) is the primary prosecuting authority with a discretionary power to take over any private prosecution. The CPS must apply a two part test of sufficiency of evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
and public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
before making a decision to take it over for the public good or leave it as a private prosecution.
The CPS can also prevent a private prosecution from continuing by taking it over and then discontinuing it. The CPS will do this only where there is not enough evidence to make a proper case or where a prosecution is against the public interest or where a prosecution could cause an injustice. In reaching this decision, it must balance the public good against a duty to preserve an individual's right to prosecute under the Prosecution of Offences Act 1985.
When taking over any private prosecution, the CPS may direct the police to conduct more investigation. This used to ensure that the best available evidence was placed before the court, as further trials were generally excluded by the principle of double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
, until it was abolished by the Criminal Justice Act 2003
Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
.
Scotland
Private prosecutions are rare in Scots lawScots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
and require special circumstances surrounding the crime to be evident. Leave to prosecute must be obtained by granting of a Bill of Criminal Letters by the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
. Within the 20th century, only three such prosecutions were made.
United States
In colonial America, because of Dutch (and possibly French) practice and the expansion of the office of attorney generalAttorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
, public officials came to dominate the prosecution of crimes. However, privately funded prosecutors constituted a significant element of the state criminal justice system throughout the nineteenth century. The use of a private prosecutor was incorporated into the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
and is still permitted there. Private prosecutors were also used in North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
as late as 1975.
Controversy
Bruce L. BensonBruce L. Benson
Dr. Bruce L. Benson is an American academic economist who is widely recognized as an authority on law and economics and a major exponent of anarcho-capitalism legal theory. He is DeVoe L. Moore Professor and Distinguished Research Professor at Florida State University, where he serves as Chairman...
's To Serve and Protect
To Serve and Protect (book)
To Serve and Protect: Privatization and Community in Criminal Justice is a book by Bruce L. Benson about private policing, private prosecution, and other market-based methods of providing criminal justice...
lauds the role of private prosecutors, often employed by prosecution association
Prosecution association
A prosecution association was an organization of citizens, typically in the same community, who paid dues to cover one another's costs of privately prosecuting offenders should a crime be committed against them....
s, in serving the needs of crime victims in England. Radical libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
theory holds that public prosecutors should not exist, but that crimes should instead be treated as civil tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s. Murray Rothbard
Murray Rothbard
Murray Newton Rothbard was an American author and economist of the Austrian School who helped define capitalist libertarianism and popularized a form of free-market anarchism he termed "anarcho-capitalism." Rothbard wrote over twenty books and is considered a centrally important figure in the...
writes, "In a libertarian world, there would be no crimes against an ill-defined 'society,' and therefore no such person as a 'district attorney' who decides on a charge and then presses those charges against an alleged criminal."
Private prosecution is sometimes regarded with suspicion as a potential avenue for vexatious or malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
. Okagbue writes that the most useful control against such abuses is the power of the court to refuse to allow the case to proceed where it is of the opinion that there is not enough evidence to support the charge. The cost of private prosecution, including potential civil liability for malicious prosecution, can also deter frivolous prosecutions.
Notable private prosecutions
- Oscar WildeOscar WildeOscar Fingal O'Flahertie Wills Wilde was an Irish writer and poet. After writing in different forms throughout the 1880s, he became one of London's most popular playwrights in the early 1890s...
initiated an unsuccessful private prosecution for libel against the Marquis of QueensberryJohn Douglas, 9th Marquess of QueensberryJohn Sholto Douglas, 9th Marquess of Queensberry GCVO was a Scottish nobleman, remembered for lending his name and patronage to the "Marquess of Queensberry rules" that formed the basis of modern boxing, for his outspoken atheism, and for his role in the downfall of author and playwright Oscar...
when the latter publicly accused Wilde of sodomySodomySodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
, which was then a crime. - Whitehouse v. LemonWhitehouse v. LemonWhitehouse v. Lemon is a 1976 court case involving the blasphemy law in the United Kingdom.- Facts :James Kirkup's poem The Love that Dares to Speak its Name was published in the 3 June 1976 issue of Gay News...
(1977), the last successful blasphemyBlasphemyBlasphemy is irreverence towards religious or holy persons or things. Some countries have laws to punish blasphemy, while others have laws to give recourse to those who are offended by blasphemy...
prosecution in the United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages... - The unsuccessful charge brought by the family of Stephen LawrenceStephen LawrenceStephen Lawrence was a black British teenager from Eltham, southeast London, who was stabbed to death while waiting for a bus on the evening of 22 April 1993....
against the five men they alleged to have killed him (1996). - The charges (later dropped) against the Ottawa Children's Aid Society for Offences committed by them under section 307 (5) of the Corporations Act, R.S.O. 1990, c. C-38 Foster Care Council of Canada - Advocacy Branch
External links
- The GuardianThe GuardianThe Guardian, formerly known as The Manchester Guardian , is a British national daily newspaper in the Berliner format...
, 28 July 2009, Can a member of the public bring a prosecution against the prime minister?