Introduction
Private Prosecutions are currently an important topic, mainly due to a series of English Court cases that have been dubbed “the largest miscarriage of justice in English legal history” (to which I will return). I started to research their origin, thinking it was just another boring detail in history, it turns out they represent a major turning point. My primary focus is on the legal history of the US and England. This is a useful model to study as the legal systems in the Colonies were created by the Crown and were much the same or even integrated in to the legal system in England. In the early 17th century a Lawyer could emigrate to America and start work right away in what was essentially the same system. The Crown set up Courts in the Colonies that could enforce English Laws but then largely left them to their own devices. This meant that Colonies could start to develop their own ideas without undue influence from London. It might be said that Independence started in these Colonial Courts as unique American ideas flourished while the English system stagnated. In time the English system benefited from American ideas, sometimes taking over 100 years to do so.
In the early 17th Century, if a crime was committed against you, it was your job to commence a prosecution against the offender. Obviously in the case of murder your relatives had to do that for you. Modern academics called this a system of Private Prosecution and that is uncontroversial. I am skeptical that term was used at the time because there was only one game in town and there was no need to contrast it against any other system.
One idea that emerged early on, in what is now the US, was that of a public prosecution. The idea that a crime is not against a person but against the State. The idea was not new, in England, King Henry 8th liked the idea but it was rejected in Parliament. In the European Civil Law jurisdictions the idea was adopted. However Public Prosecution remained unused in Common Law jurisdictions until the American Colonies started to adopt it.
A Question with public prosecutions is who would bring them? One popular idea at the time was the job of the Attorney General (dating back as far as 1243 in England). Particularly in Virginia this office was adopted. One of their jobs was the appointment of public prosecutors, the County Attorney and later the District Attorney. One of the most distinctive features of the American (US) justice system is the network of District Attorneys. Although many of the concepts of the modern US system are inherited from the English Common Law the District Attorney was not one of them. Particularly in the modern era where they are elected. I recommend the documentary series Philly D.A. which ran recently on the BBC (and probably on PBS in the US) as it provides an in depth view of the election and the day to day issues they face.
No such system emerged in Britain. Instead there are a network of unelected Crown Prosecution Services. In England this should result in a more consistent of justice. However the District Attorney’s office can be lobbied and they have created some “Conviction Integrity Units”. If there is an innocence community in the US, they are divided as to whether this is a good or bad idea. A D.A. up for election might might make a decision that is intended to boost their popularity
Towards the end of the Colonial Period the idea emerged that people had Rights. As such the idea of Rights emerged in England, I’m thinking of Magna Carta and the Bill of Rights. Though born in England these ideas were adopted in British North America with enthusiasm. Forming part of John Adams’ “rights of Englishmen” arguments for independence. The importance of individual Rights continued to develop through American Independence and were embedded into the US Constitution. In England the importance of Rights is maintained however they seem to be regarded as more of a historical curiosity. In the fields of Runnymede, England, there is a monument to Magna Carta but it was put there by the American Bar Association. This author sees great significance as to why Americans (and Indians) view it as important but in England it is something to be taught in schools and then forgotten. Today individual Rights remain very important in the US but as just an annoyance in Britain.
Private Prosecutions
Jumping forward in time to the present day, Private Prosecutions are in the news as a consequence of what has been called “possibly the largest miscarriage of Justice in English legal history”. In England a miscarriage of justice is when you are convicted of a crime you either didn’t do or your level of culpability is marginal. They happen when somebody lies about your activities and yet the Court declares that you are guilty. You were failed by the Justice system.
In England, a Private Prosecution is one that is not commenced by a public prosecutor , i.e. the Police or more usually the Crown Prosecution Service. The CPS definition is: A private prosecution is a prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other prosecuting authority. A ‘prosecuting authority’ includes, but is not limited to, an entity which has a statutory power to prosecute. This definition applies from 1986. I will come back to a “prosecuting authority”.
In the US it is a prosecution that is not commenced by the District Attorney (County Attorney etc) or any Public Prosecutor. Additionally it is one commenced by an “interested” private prosecutor. Private Attorneys can be involved in cases where they are invited by the Courts or Public Prosecutor. In the US there are some gray areas. A Private Prosecutor may be on the Public Prosecutors team. Private Prosecutions can be limited, e.g. no prison time can be imposed.
In the US, Lawyers, Judges and Academics look upon Private Prosecutions with horror. They believe they are some antiquated English idea that has no place in modern America. In fact the US still has Private Prosecutions at least in theory. What is worse is that London Law firms, that find them a profitable line of business, want to take them to America.
Back to the infamous case, it concerns the English Post Office (POL for Post Office Limited) who accused hundreds of Sub-postmasters (SPMs) of fraud and theft, claiming there were cash shortfalls in their business. Although they were individually told no other SPM had these problems, they found out that many others had been similarly accused and about 550 formed the Justice for Sub-postmasters alliance (the JFSA). Together they, and their legal teams, commenced a Civil Action against POL. The case, and the costs, were massive for the POL and the JFSA but after an epic civil action in the High Court POL decided to settle. The settlement was for around £50 Million. Although that sounds like a lot, and is, when broken down among all claimants, lawyers and litigation funders it meant that many did not even recover their costs. Although many of these cases have completed, more are in progress.
Some of those convicted contacted the CCRC and requested their cases be reviewed for a potential miscarriage of justice. The CCRC agreed there had been a potential miscarriage of justice and referred those cases to the Court of Appeal. As part of the review the CCRC noticed that many of the SPMs had been the subject of a Private Prosecution and they made a request to the parliamentary select committee on Justice to consider the safety of Private Prosecutions. The Justice committee met and produced a report. This is the first time this author had paid any real attention to a Select Committee, all I can say is that they’re awesome. Watch the video, read the submissions and the report here.
The reason the CCRC wanted Private Prosecutions investigated was a sense that they represent a second class justice. That it is easier to gain a conviction in a Private Prosecution, possibly bypassing the checks and balances that would be present if the CPS had investigated and prosecuted if it was a Public Prosecution.
I should have commented on the CCRC. In Common Law Jurisdictions, specifically the Criminal Justice System you will have the trial I mentioned and you may be pronounced Innocent or Guilty. Those found Guilty will receive a punishment, often being sent to Prison. What is not so well known is that you only get one Trial. A consequence of this is that if you are truly innocent of the Crime you have just been found guilty of you are now in a private hell. I imagine most readers will reject this, correctly pointing out the system of Appeals. What it is also not well known is that an Appeal is not technically concerned with innocence or guilt, rather they are concerned with whether you got a fair trial. In the late 20th Century there were a series of Trials in England that are now notorious and even have names; the Guildford four, the Maguire Seven and the Birmingham Six where it was recognized that Innocent people had been found Guilty by the best Court in the land. As a consequence of this a Commission was created to review cases where people claim they are Innocent. The latest version of this is the CCRC. They can examine your case, if they believe that you did not get a fair trial and your Appeal was rejected they can refer your case back to the Court of Appeal. They did this with some number of SPM cases and they referred them to the Court of Appeal. For most of those appellants their convictions were ‘Quashed’. In the US this would be called “granting certiorari”. There are a number of initiatives in the US that do functionally similar things to the CCRC, I have heard that one State is adopting the CCRC model directly. In the picture above most of the CCRC referrals were successful and the Appeals granted.
Origins
What are the origins of the modern Private Prosecution? Returning to my historical approach, it is very useful to consider the legal history of the Commonwealth of Virginia.
See below a plaque commemorating the arrival of Common Law in Virginia.
Initially in Virginia they used the private prosecution scheme inherited from England.
Lawyers subsequently began to see this as unsatisfactory. There were many problems. In Virginia the idea of a Public Prosecution emerged very early. Virginia established the office of Attorney General in 1643 (based upon a similar role in England). A formal system of county prosecutors was established in 1711. Once Virginia’s District Attorneys had taken that role there was no more need for private citizens to prosecute. Nevertheless Virginia did authorize citizens to employ a private attorney to assist the county prosecutor – not to take over or commence the prosecution. Crimes were considered to be against the State and not the victim. That is not only before Independence but over a hundred and eighty years before idea gained traction in England. Ever since Public Prosecution, by a Public Prosecutor, has been the mainstay in the US. The idea of electing those officials emerged, in the Andrew Jackson era, and now the US Public Prosecutor is among the most powerful in the free world. Even so, nobody really understands where the idea came from – it is called a legal enigma. That idea would propagate across the US. Even so, the use of Private Prosecutors has not gone away.
A good reference to the history of the Public Prosecutor in the US by Joan E Jacoby here. It is easy to frame the emergence of Public Prosecutors as in some way a rejection of English ideas post independence. That does not really hold up as most of the changes were under way or complete in the Colonial period.
Understanding the reasons the US legal system evolved one way whereas the English system took another is quite challenging and not well studied. A part of it is Rights and their importance in the respective Countries. Ideas about Rights often originate in England, e.g. Magna Carta, Instrument of Government, Declarations and Bills of Rights. Then in Britain, while maintaining their historical importance, their legal importance seems to fade away. That is until some Right supports the legislation or Statutory instrument that government is trying to promote and then it becomes very important. One example is the ‘Right to a speedy trial’. In the US this is very real and if the prosecutor exceeds the allotted time to bring a case then that person can expect charges to be dismissed. In England that Right has existed since Magna Carta, also in the article 6 of the Human Rights Act and yet people can linger for several years before their trial begins. Another one is the right to ‘Due Process of Law’. This also dates back to Magna Carta and is very important in the US and yet it is something that really doesn’t trouble English Courts very much. In the US Bill of Rights every defendant is guaranteed a fair trial (6th amendment) and the same is true in England however it seems to mean different things. In the US, probably in England as well, a Prosecutor is said to have a Quasi-Judicial role. How can a defendant get a fair trial if the Prosecutor, in a Quasi-Judicial role, supports the interested party ?
Absurdity
In the US people began to recognize the absurdity of Private Prosecutions.
From John Bessler: Some private prosecutions in Philadelphia bordered on the bizarre. For example, “Henry Blake’s wife prosecuted him for refusing
to come to bed and making too much noise, preventing her from sleeping. He was bound over to come to bed when called.” (defining “bound over” as “bound over for trial”). Likewise, a Southwark man “charged a fortune teller with conspiracy for beguiling his wife into believing that for a fee information
could be provided about his infidelities.” . Thus, private prosecutions “gave citizens the power, in practice, to define crime. Because the minor judiciary let them do so, almost anything that annoyed or irritated a person could be treated as a crime, for whatever motives a prosecutor might have.
The absurdity of Private Prosecutions did not go unnoticed in England. The most famous to comment on them was Jeremy Bentham, who’s preserved body is said to look over students at UCL London. One of his points was that the cost of litigation slanted the justice system clearly in favor of the wealthy and away from ordinary people. The POL case defense costs were about £40 Million. If he could, Jeremy would surely be turning in his grave (or spinning in his chair) today.
Perhaps the most important person to object to Private Prosecutions was Robert Peel. He founded the modern police force, recognizing the Injustice of the thief takers and introducing the American idea of Public Prosecutions to England. The 1879 Prosecution of Offences Act introduced the Director of Public Prosecutions (the DPP). Thus the need to distinguish Private from Public Prosecutions. A notorious Private Prosecution was that of Oscar Wilde. At this point it can be said that Public Prosecutions appeared in English Courts.
In the US Private Prosecutions still exist but many States ban them. Even the States that still allow them place restrictions on their use. Perhaps a Private Prosecutor can assist the Public Prosecutor.
In Modern England Private Prosecutions are allowed and even thrive. Why would that be? One reason given is that the CPS do not have time, interest or motivation to prosecute some cases. That you, as a victim, are not getting justice. In the SPM cases there was no referral to the CPS. Another reason given is that the Private Prosecutor is skilled in certain specialized areas of Law that the CPS are not. One area here is Copyright. None of that really applied in the POL cases.
To study why Private Prosecutions still exist it is very useful to consider their development in the US and particularly in the Commonwealth of Virginia. A particularly useful document is “No One can serve Two Masters: Arguments Against Private Prosecutors by Matthew S Nichols. The title of this note gives away the fundamental conflict at the heart of a Private Prosecution. How does a Prosecutor perform their duties to the Court justice as well as their client? The Commonwealth provides a Public Prosecutor for all crimes and so a Private Prosecutor is not needed.
In the US, the Bill of Rights grants the right to due process to individuals. In England, Due Process dates back to Magna Carta clause 39 (later 29). The problem in England is that Rights never seem to have the significance that they do in the US.
As it is relatively easy to commence a Private Prosecution a number of Law Firms already have dedicated units to help you do just that.
In England, Private Private Prosecutions were put on a statutory footing and the rules are documented by the CPS. The right to bring private prosecutions is preserved by section 6(1) of the Prosecution of Offences Act (POA) 1985. However the Director of Public Prosecutions (DPP) has power under section 6(2) POA 1985 to take over private prosecutions; in some cases, the private prosecutor must seek the consent of the Attorney General or of the DPP before the commencement of proceedings. What does a “Right” mean? How can it override the rights of a defendant? They seem quite happy to override the right to a speedy trial. As part of a move to reduce the costs of trials, the Criminal Procedure Rules have added an important page called the “overriding objective“. This is a great idea and I really like this part: “The overriding objective of this procedural code is that criminal cases be dealt with justly“. This contrasts with the American experience of Private Prosecutions and the conflicts of interest with defendants and indeed Justice.
The main complaint with Private Prosecutions is that they seem to override the protections that have been put in place to protect defendants rights. The most notable of these being the “full code test” which is published in the The Code for Crown Prosecutors. In there the Prosecutor is supposed to follow “all viable lines of Inquiry”. Then they are supposed to ask themselves whether this prosecution is in the “public interest”. The main question is whether Private Prosecutors follow this test. Certainly with the Sub-postmasters they usually proposed that faults in a POL Accounting system called Horizon was to blame for their cash shortfalls. In fact they usually complained that there were no actual shortfalls, just incorrect calculations in Horizon. This line of Inquiry was not really followed in their trials and yet at the Civil Action POL agreed to settle. At the Criminal Appeals, of most of those referred by the CCRC, it was accepted that they didn’t have fair trials.
One of the actions that those subject to a Private Prosecution can take is to refer their case to the Crown Prosecution Service. Although this sounds counter intuitive the CPS could halt the prosecution. They could also ensure that the “Full Code Test” is followed. There is also a theory that the Private Prosecution may halt because they do not want their case exposed to CPS scrutiny.
Particularly in the US, I believe it is true in the UK as well, a Private Prosecutor does not have what’s known as Prosecutorial Immunity. They can be sued in Court.
In the US a Private Prosecutor cannot give false information to commence a prosecution.
US Supreme Court and Private Prosecution
A problem trying to describe the status of Private Prosecutions in the US is that there are 50 States to consider. The rules in each State could be different to all the others. There exists Federal Law to which all States have to comply but the subject has not been addressed at that level. There is the US Code but there is nothing of note in there either. The best hope to achieve a national harmonization of the Rules would be to refer a Case to the US Supreme Court. This has actually been done, the case was Young v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987).
The United States Supreme Court held, in the exercise of its “supervisory authority,” that a district court erred in appointing counsel for an interested party to prosecute a criminal contempt action.
This is somewhat short of banning private prosecutions but at least shows that certain principles apply.
US Legal Transitional History
In researching Private Prosecution history I managed to clarify a little bit of US Legal History, at least from the perspective of my own understanding. After the Revolutionary war there were thirteen independent Colonies. What legal system did they use? For the most part they adopted the legal system that was in place and so inherited the English Common Law system. This made a lot of sense as it would have taken an age to write new ones from scratch! However there was also a lot of anger as there was a huge loss of life from the War. They also did not want to accept English Law as a whole. New Hampshire argued they would accept all existing Laws, except those considered repugnant. Morally I could understand this but it is not very specific – which Laws were considered repugnant exactly? How long after independence could Laws be considered Repugnant? There were probably some Laws that originated in the Union known as the “Articles of Confederation”, though this didn’t last long before the Union that is the United States of America. During the Constitutional Convention there was no agreement that there would even be a Union vs a new unitary Country. Fortunately the Union we know today emerged. The States kept their own legal systems.
Today there are 50 States and they all have a legal system based upon Common Law. How did we get 50 from 13? One way was that States would split, for example what is now Maine was once Massachusetts. When they did the split they kept the existing legal system. Some of the States came from Land that was acquired, e.g. the Louisiana Purchase and Alaska. Texas was conquered from Mexico. What legal systems do they have? An interesting example is Florida. They adopted the English Common Law as it stood at the creation of the Union. Every self respecting Lawyer would get themselves set of Blackstone’s Commentaries. Florida did have an existing legal system inherited from the Spanish, they took what they saw as the best of these and created a legal system that was a blend of the respective systems. Another interesting case is California, here they adopted English Common Law but also used Spanish Civil Law.
What did this mean for the system of Private Prosecution? All States that adopted Common Law would inherit Private Prosecutions. They were not regarded, at least initially, as “repugnant” and so just became a part of State Law. They were not liked by many in the legal community and there attempts to use Case-law against them. That was rejected, the idea was that only an act of the State Government could ban them. I found this interesting as it shows that initial Common Law is very much the law of the land. There isn’t really any uncertainty.
Prosecuting Authority
Some Private Prosecutions can be commenced by a Prosecuting Authority. These are organizations that have a statutory right to do so. The problem is they blur the line between public and Private Prosecution. There are a lot of Prosecuting Authorities, exactly how do you enforce standards? The nominal right of individuals to bring private prosecutions seems to be possibly abused by some of the Prosecuting Authorities. When you are investigated for a crime it is not unusual to interact with the Police. For some of the Prosecuting Authorities they also use the Police, the question is – are they allowed to do so? Why should they be able to use public resources for private prosecutions?
The Serious Fraud Office (SFO) is listed as a Prosecuting Authority but are they Public or Private Prosecutors? The definition I chose is that if the case is initiated by the CPS – it is a Public Prosecution, all others are Private Prosecutions. The SFO are clearly part of the of the UK criminal justice system so my definition leaves some uncertainty. One comment from their web site is interesting: We are unusual in the UK in that we both investigate and prosecute our case but there is a problem. Defendants are entitled to a disinterested prosecutor. One of the most revered maxims of English Law is that nobody can be judge in their own case. A Prosecutor is said to have a Quasi-Judicial role and so an SFO Prosecution does not really seem to confirm to Judicial standards. They seem to be more like a Private Prosecutor.
References
From: The Transformation of Criminal Justice: Philadelphia, 1800-1880.