The term private prosecution applies to criminal proceedings and is usually initiated, or brought before a court, by an individual or private organisation (such as a prosecution association) instead of a public prosecutor who represents the state.
Procedure
In order to initiate a private prosecution an individual or organization other than the state-funded prosecutor goes to the local court of appropriate jurisdiction (Criminal or Provincial) and gets in line to see a Justice of the Peace or a Judge to swear on oath in an attempt to convince the Justice or Judge that there is enough evidence to demonstrate a reasonable probability of conviction.
Once the Justice or Judge has been convinced of such, he or she will issue an "information" which is a form telling the name and occupation of the informant (the person swearing to the Justice or the Judge) the name and address of the alleged offender, and the description of the alleged Offence.
The Justice or Judge will sign the "information" form and issue a summons to the defendant with a date to appear in court. The informant then delivers the summons to the defendant in the prescribed manner and court proceedings are commenced.
The date of First Appearance the defendant is to plead guilty or not guilty. If the defendant pleads not guilty, a trial date is set; if a plea of guilty is given the courts can deal with the matter right away by registering a conviction and sentence.
United Kingdom
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.[1] In the 18th century, prosecution of almost all criminal offenses was private, usually by the victim.[2]
In England and Wales, the Crown Prosecution Service (CPS) is the primary prosecuting authority with a discretionary power to take over any private prosecution.[3] 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 only do this 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, they 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 can direct the police to conduct more investigation. This ensures that the best available evidence is placed before the court, as further trials are generally excluded by the principle of double jeopardy.
United States
In colonial America, because of Dutch (and possibly French) practice and the expansion of the office of attorney general, 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.[4] The use of a private prosecutor was incorporated into the common law of Virginia and is still permitted there.[1] Private prosecutors were also used in North Carolina as late as 1975.[5]
Libertarian view
Bruce L. Benson's To Serve and Protect lauds the role of private prosecutors, often employed by prosecution associations, 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 torts. 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."[6]
Notable private prosecutions
- Whitehouse v. Lemon (1977), the last successful blasphemy prosecution in the United Kingdom
- The unsuccessful charge brought by the family of Stephen Lawrence against the five men they alleged to have killed him (1996).
- The charges 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
References
- ^ a b Nichols, Matthew S. (2000–2001), No One Can Serve Two Masters: Arguments against Private Prosecutors, vol. 13, Cap. Def. J.
{{citation}}: CS1 maint: date format (link) - ^ Friedman, David D. (1995), Making Sense of English Law Enforcement in the Eighteenth Century, vol. 2, U. Chi. L. Sch. Roundtable, p. 475
- ^ Crown Prosecution Service, Legal guidance page on private prosecutions
- ^ Robert M. Ireland (Jan., 1995). "Privately Funded Prosecution of Crime in the Nineteenth-Century United States". The American Journal of Legal History. 39 (1). Temple University: 43–58.
{{cite journal}}: Check date values in:|date=(help) - ^ Sidman, Andrew (1975–1976), Outmoded Concept of Private Prosecution, The, vol. 25, Am. U. L. Rev., p. 754
{{citation}}: CS1 maint: date format (link) - ^ Rothbard, Murray, "Punishment and Proportionality", The Ethics of Liberty
External links
- The Guardian, 28 July 2009, Can a member of the public bring a prosecution against the prime minister?
This law-related article is a stub. You can help Wikipedia by expanding it. |