News stories about private criminal prosecutions continue to abound, highlighting the extent to which this is a growing area. Since our last roundup, the spectacular collapse of a hunting prosecution, developments in the Aisling Hubert abortion case and attempts to fund a number of cases illustrate a number of practical issues and pitfalls.
In December, the League Against Cruel Sports ('LACS') was forced to abandon a private prosecution of members of the Lamerton hunt midway through a trial due to questions over the impartiality of an expert witness. Defence lawyers called into question whether LACS's expert had embellished his experience and had downplayed his prior links to LACS. The Countryside Alliance was scathing about the prosecution, with its Chief Executive saying "this appalling case raises a series of fundamental questions about the abuse of the criminal justice system by vindictive private prosecutors. LACS spent more than £100,000 of charitable funds on a case that the police had correctly judged simply did not stand up… LACS sought to corrupt the criminal justice system and use it harass six innocent people… Questions need to be asked about this abuse at the highest levels".
LACS vigorously defended the decision to bring the prosecution but indicated that it had withdrawn the case on the basis of legal advice. A spokesman said "We wanted the judicial process to make a decision on this case, and we want the world to know that the League Against Cruel Sports will not stand by and let hunts flout the law". Interestingly, press reports indicate that LACS was not ordered to pay the defence costs, with the judge ruling that LACS had not committed any "unnecessary or improper act or omission". In a separate development, the RSPCA has dropped its own policy of carrying out private prosecutions against hunts and will instead hand over evidence to the authorities.
Separately, the High Court refused permission in December for pro-life campaigner Aisling Hubert to seek a judicial review of the DPP's decision to take over and discontinue her private prosecution of two doctors caught on video discussing sex-selective abortions. We previously covered the case here. It also upheld the costs award of £22,000 made against her in relation to the discontinued prosecution (partly on the basis that, at the point at which the prosecution was brought the available evidence was insufficient to support it). That award can be set against the award of £500,000 of costs to the prosecutor (in addition to over £18m compensation to the victims and a £20m confiscation order) in the recent private prosecution of 'King Con' Ketan Somaia.
The hunting and the Hubert cases show the extent to which emotionally charged, 'political' issues may make their way into the criminal courts in the guise of private prosecutions. Even where the CPS concludes that a prosecution should not be brought, there will be case where pressure groups, charities, private organisations and individuals may yet bring a prosecution privately. The Hubert case in particular is a salutary reminder that the right to bring a prosecution carries attendant responsibilities, and that prosecutors may find themselves subject to orders for costs. While the government does not appear to have active plans to circumscribe the right to bring a private prosecution, more 'political' cases such as these (and more acquittals) may see the issue become more of a live issue.
Other cases which have received significant media attention are noteworthy for their approaches to funding. Two cases in England illustrate that prospective prosecutors may increasingly be looking to 'crowdfund' proceedings. An inquest heard that Samuel Harry was unlawfully killed while in the care of the child's mother and her partner, and that it was 'highly likely' that injuries were inflicted on him. The two blamed each other for his death. Press reports suggest that the CPS concluded that there was insufficient evidence to prosecute either of them due to it not being possible to prove who was responsible for Samuel's death. Samuel's father Nicholas has launched a fundraising appeal to seek justice for his son.
Separately, the Cyclists' Defence Fund (CDF) has urged people to donate to an appeal to help the family of London cyclist Michael Mason bring a private prosecution against the driver of the car involved in the collision that killed him. In that case, the Met Police withdrew a decision to pass a file to the CPS in relation to the death. To date, the appeal has raised nearly £60,000, indicating the extent to which issues which resonate with sections of the public need not necessarily rest in the hands of the police and CPS.
Perhaps the most high-profile current private prosecution is the 'Glasgow Bin lorry' case relating to an accident in which six people lost their lives. The driver, Harry Clarke, has been accused of lying in job applications about a long history of blackouts and dizziness. News reports suggested that the families of a number of the deceased may seek government funds to bring the prosecution or, alternatively, may follow a crowdfunding approach; papers were formally lodged with the Lord Advocate on 20 January, though the Lord Advocate subsequently rejected the application.
David Northfield is part of Fieldfisher’s Private Prosecutions team which specialises in regulatory, intellectual property and fraud cases. To discuss criminal prosecutions, please contact the specialists listed on our Private Criminal Prosecutions page.