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.
- 1 Australia
- 2 Canada
- 3 France
- 4 Philippines
- 5 United Kingdom
- 6 United States
- 7 Controversy
- 8 Notable private prosecutions
- 9 References
- 10 See Also
- 11 External links
A private criminal prosecution for contempt of court can be commenced against a party in Australia in the Federal Circuit 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 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 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 organisation 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 go 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.
In Ontario, the procedure for commencing a private prosecution for a provincial offence is governed by Part III of the Provincial Offences Act, ss. 23(1) of which provides that, "Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information." The laying of an information as described in Part III of the Act allows anyone to commence a prosecution for a provincial offence, whereas Parts I and II of the Act may only be used by a provincial offences officer.
There are three types of criminal offences in France :
- Felonies (crimes), punishable by up to imprisonment for life ;
- Misdemeanours (délits), punishable by up to 10 years imprisonment (20 years for recidivists) ;
- Petty offences (contraventions), punishable by criminal fine up to 1 500 € (3 000 € for recidivists).
In France private prosecution is called citation directe, and is possible only for misdemeanours and petty offences, if the victim has evidences of the offence.
The court sits with either one or three judges, without jury (jury is present only for felonies, see cour d'assises).
In court, the private prosecutor sits alongside with the public prosecutor as an accessory, and is merely called the "plaintiff" (partie civile). Trials take place in this way even when the prosecution was initiated by the public prosecution office (it is far more usual than a private prosecution).
The plaintiff and the accused are both represented by normal lawyers, sitting at the ground-level of the courtroom, while the public prosecutor, considered by French law as a magistrate, sits on a platform as the court, although he doesn't participate in deliberation.
The public prosecutor gives the court his opinion about the case after the plaintiff and before the defence. Eventually, the defendant may be convicted even if the public prosecutor requested acquittal.
In France, appeal courts retry both facts and law. The accused may appeal a conviction and sentence, but the plaintiff can only appeal damages, he cannot appeal an acquittal nor a too lenient criminal punishment, contrary to the public prosecutor, who can do that even if the prosecution was private.
For felonies or when the plaintiff has insufficient evidence, he may refer to an investigating judge (juge d'instruction) who will investigate the case, and refer it to the trial court (in which he don't sit) if he discovers sufficient evidence of guilt. The investigating judge is independent from the public prosecutor's office, and may refer the case to the trial court even if the public prosecutor requested a nonsuit.
Former President Jacques Chirac was convicted in 2011 of diverting public funds and abusing public confidence, despite complete opposition of the public prosecution at all stages of the procedure. The real prosecution was in fact supported by the plaintiff, an association for the defence of taxpayers.
If the defendant is convicted, he can be sentenced to pay damages to the plaintiff for the criminal offence, and to reimburse his legal costs, in addition to the criminal punishment. But if the private prosecution or the referral to the investigating judge is regarded as abusive, the plaintiff may be sentenced to pay damages to accused and a civil fine to the state.
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Private prosecutors in the Philippines are private attorneys that work with police and public prosecutors to help bring criminal cases. They often work to get the location of a trial moved to more neutral court, outside of the influence of local power brokers, and to prepare needed legal petitions and other documents. They also help to keep up the spirits of the victim's family and to keep media and public attention focused on the case.
Private prosecutors can be involved in cases in front of the national anti-corruption court the Sandiganbayan.
Private prosecutions are permitted in the United Kingdom. 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 lawyer 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, 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. The intention of this was to ensure the best available evidence was placed before the court, as further trials were generally excluded by the double jeopardy rule. The latter rule was abrogated in certain circumstances of "new and compelling evidence", and for a limited range of the most serious offences such as rape, armed robbery and murder, by the Criminal Justice Act 2003.
Private prosecutions are rare in Scots law 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.
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. The right was quashed by the case of Leeke v. Timmerman, 454 U.S. 83 (1981), confirming earlier judgments. 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.
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. There have been calls for restoring the practice of private prosecution, especially in cases of official misconduct, where judges, public prosecutors, and the police act in concert to violate the law. Some libertarian theorists hold 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."
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.
Notable private prosecutions
- Oscar Wilde initiated an unsuccessful private prosecution for libel against the Marquis of Queensberry when the latter publicly accused Wilde of sodomy, which was then a crime. This was unsuccessful, and Wilde himself ended up convicted of gross indecency, with a punishment of five years at hard labor.
- Whitehouse v. Lemon (1977) was the last successful blasphemy prosecution in the United Kingdom.
- The family of Stephen Lawrence brought charges against the five men they alleged had killed him (1996). The private prosecution was unsuccessful; one suspect's acquittal in the criminal trial was quashed in 2011, with a subsequent trial resulting in his and another suspect's conviction in 2012.
- (French) French source
- Simon, Joel. "The Private Prosecutor". Committee to Protect Journalists. Retrieved 1 October 2012.
- Nichols, Matthew S. (2000-2001), No One Can Serve Two Masters: Arguments against Private Prosecutors 13 (279), Cap. Def. J.
- Friedman, David D. (1995), Making Sense of English Law Enforcement in the Eighteenth Century 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 (Temple University) 39 (1): 43–58. JSTOR 845749.
- "Private Prosecutions". The Constitution Society. Retrieved 29 July 2013.
- Sidman, Andrew (1975-1976), Outmoded Concept of Private Prosecution, The 25, Am. U. L. Rev., p. 754
- Rothbard, Murray, "Punishment and Proportionality", The Ethics of Liberty
- Isabella Okagbue (Spring 1990). "Private Prosecution in Nigeria: Recent Developments and Some Proposals". Journal of African Law (Cambridge University Press on behalf of the School of Oriental and African Studies) 34 (1): 53–66. JSTOR 745600.
- The Guardian, 28 July 2009, Can a member of the public bring a prosecution against the prime minister?
- Court Declines to Address Private Prosecution, Constitutional Law Prof Blog, May 24, 2010.
- Plea bargains and private prosecutors, James Bickford, SCOTUSblog, April 2nd, 2010.
- Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, [Unsigned] The Yale Law Journal Vol. 65, No. 2 (Dec., 1955), pp. 209-234.
- Delegation of the Criminal Prosecution Function to Private Actors, Roger A. Fairfax, Jr., U.C. Davis Law Review, Vol. 43:411.