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A Hesitant Fidelity to History

A HESITANT FIDELITY TO HISTORY

THE PROBLEMATIC ROLE OF PRIVATE PROSECUTIONS WITHIN THE ENGLISH

    SYSTEM OF ‘PUBLIC’ PROSECUTIONS

 

By Dr. RODERICK MUNDAY

Fellow of PeterhouseCambridge

 

 

 

Introduction: making a virtue out of a necessity

 

   Yesterday, in the course of a masterly analysis of the variety of prosecution systems employed in assorted jurisdictions, Professor Pradel told us: “Predictably, English law is different.”  He was, of course, quite right.  English law habitually makes a substantial contribution to what could be politely termed, legal diversity.   Indeed, it is so different in its approach to the business of prosecuting offences that I was genuinely concerned  as to what exact contribution an account of English criminal procedure might make to this magnificent Congress.  Clearly, it will at least contribute to what your Attorney General, Sr. Geraldo Brindeiro, spoke of yesterday: namely, the need to understand other people’s legal cultures.

 

   Often, when one enters the comparative domain, one discovers that perfectly acceptable results can be achieved by systems that conform to principles radically divergent to our own.  Were there any danger that anyone present today believed that, no matter where one goes, a prosecutor is a prosecutor is a prosecutor, I anticipate that this account of things will dispel any such illusions. Traditionally, the English prosecution system exalts the role of the private citizen.  In this sense, it is a true legal curiosity – even, I suspect, for many English lawyers.  You may be surprised to learn that the very notion of public prosecution is only of very recent introduction in England.  The English tradition has been to consider that prosecuting criminal offences is essentially a private matter.  Unlike France, for example, where M. Charpenel told us, the office of public prosecutor can be traced back to the 13th Century, England had no remotely comparable office for most of that period.  If a crime was committed against a citizen, it was up to the citizen to prosecute the offence, to hire a lawyer to represent him and so on.  An office of public prosecutor was very much an afterthought in England.

 

   Our procedure, too, is different from what you will be accustomed to in other connected ways.  A consequence of not having an office of public prosecutor (and, to all intents, of not really involving judges during the investigative phase of the criminal process) is that English law inevitably has placed, and still places, great emphasis on the trial, the day in court. Pre-trial procedure was relatively unimportant. It was up to the parties to assemble their case – to decide which witnesses to call, which evidence to present.  In short, the procedure was not just adversarial, but was actually propelled by the parties. [1]   This history colours our procedure to this day.  Because evidence presented at trial was often arriving before the court without previously having been examined or tested judicially, English law paid great attention to fairness at the trial, developing strong notions of what American lawyers call ‘due process.’  It had little choice but to do so. [2]

 

    Mr Nigel Sweeney, Q.C., a very experienced English prosecutor, will address you presently on what our prosecutors do.  My task, I believe, is to set the scene, to paint in the peculiarly private backdrop against which the English public prosecution system now operates.  I am aware that lawyers from other jurisdictions are highly curious about private prosecutors.  Although Professor Pradel has reminded us that in numerous legal systems the aggrieved party has the right to initiate a prosecution, this tends to occur in minor cases.  What is extraordinary about English law is that private prosecutions can occur also in the most serious cases – for example, in trials for rape and homicide. Lawyers from jurisdictions with different legal traditions must wonder, How does English law reconcile these two competing classes of prosecutor, the public and the private?  And why are private prosecutors necessary at all?

 

   The second question, it seems to me, leads us into curious territory.  I think that we can see that out of necessity English law has made a virtue. The private prosecution was required because we had no office of public prosecutor, no tradition of public prosecution. As and when police forces became established – and this is not really before the 19th century, the police began to take over prosecuting functions.  Why?  Because there was no-one else.  The fiction developed that the police were prosecuting not as police officers but as private individuals – and, in a sense, they truly were.  They were merely asserting and exercising every individual citizen’s birthright to prosecute crime. When I was a student, in magistrates’ courts (which are the lower rung of criminal courts in which over 95 per cent of criminal cases are tried) policemen still appeared in some areas as prosecutors – prosecuting minor, and not so minor, criminal offences.  Police forces sometimes had their own legal departments.  Sometimes they employed local firms of solicitors to represent them in court. Within some police forces there actually existed ranks of ‘prosecuting sergeant’ and ‘prosecuting inspector.’  The system could hardly be defended as rational once the searchlight of modernity was beamed upon it.  However, it might also be noted that this distinctly odd prosecution system did not provoke a breakdown in law and order either.  Without being perfect, and certainly without being the type of system that any social architect, even in their wildest hallucinations, would have contemplated devising, a system based upon private prosecution probably did  not work too badly.  This will appear remarkable, I suspect, to lawyers who have the misfortune to have been brought up within a tradition of public prosecution!

 

   As I say, out of a necessity the English have made a virtue.  For the right to prosecute is now viewed as a sanctified, fundamental right attaching to citizenship. It has perhaps become one further way in which the English express their suspicion of centralised power.  The right to prosecute provides one additional means of asserting the liberal, individualistic tradition – keeping the state at bay.  This transubstantiation of necessity into virtue must be difficult to comprehend if one comes from a tradition of public prosecution.  Hence, today I thought it might be worthwhile exploring English criminal procedure’s private roots, as well as highlighting some of the problems that this tradition now creates for us.

  

 

The advent of public prosecution in England

 

   English criminal justice has moved towards the idea of the centralised, ‘public’ prosecution comparatively recently. Only in 1985 was legislation passed, the Prosecution of Offences Act, setting up a centralised system of prosecution for England and Wales, known as the Crown Prosecution Service. Prior to the 1985 Act, the prosecution system had been fragmented and, to some eyes, unfair and amateur. In essence, prosecutions could be brought by a very wide range of individuals and bodies; the great majority of prosecutions were in fact brought by the police who, for long, have enjoyed a central position within the English prosecuting structure; there was an evident absence of central control over prosecuting policy; and there was a distinct lack of pattern in the practical arrangements.  As the Royal Commission, chaired by Sir Cyril Phillips, concluded in 1981, summarising its findings:

 

 “(T)he arrangements are characterised by their variety, their haphazardness, their local nature and … by the unitary nature of the investigative and prosecutorial functions, with primacy of responsibility for decisions on prosecution being vested in the police and not the legal profession.” [3]

 

   It is true that one could have been misled into thinking that England did enjoy a system of public prosecutions before 1985. After all, an office of ‘Director of Public Prosecutions’ was created by legislation in 1879, [4] following a concerted nineteenth-century campaign to establish a system of public prosecution. The creation of any kind of public prosecutor in that year was decidedly something of a legal event. The 1879 Act defined the Director’s role as being

 

“to institute, undertake or carry on such criminal proceedings … and to give such legal advice and assistance to chief officers of police, clerks to justices and other persons … as may be for the time being prescribed … or may be directed in a special case by the Attorney-General.”

 

However, the system over which the Director of Public Prosecutions nominally presided was not particularly public. In fact, prior to the 1985 Act, the Director’s role was comparatively restricted and consisted of the following four functions.  First, the Director enjoyed the power to take over prosecutions and to discontinue them, if necessary.  This power he only exercised very sparingly. Secondly, a growing number of statutes prescribed that prosecutions might only be brought if the Director consented thereto.  This obviously conferred upon him a degree of control over prosecution policy, at least in regard to these offences.  Thirdly, the D.P.P. could bring prosecutions, which he did in a small number of the most serious cases, as well as giving advice to the police or the relevant prosecuting authority. The Director’s advice was sought fairly frequently. Finally, the Director had referred to him all cases involving complaints against police officers where decisions had to be taken whether or not to prosecute the officers.  Apart from this, however, the office of D.P.P. had little impact, as the above-quoted remark of the Phillips Commission amply demonstrates.

   The objective of the Prosecution of Offences Act 1985 was to introduce a unified prosecution system in England and Wales.  The Crown Prosecution Service is headed by the Director of Public Prosecutions, and the country is now divided up into 42 areas, each of which lines up with its own police force. [5]   The Director has the duty to publish a Code setting forth the criteria the Service employs when deciding whether or not to  prosecute.  The Service’s role is to advise on prosecutions; to review cases to ensure that the right decisions have been taken; to prepare cases for court; and to present cases is the magistrates’ court and to instruct counsel to prosecute cases before the Crown Court, where the C.P.S.’s officials at present do not enjoy rights of audience. is thtIn 1998 it was responsible for prosecuting 1.4 million cases before the magistrates’ courts and for preparing and instructing counsel in 128,064 cases before the Crown Court. One of the paradoxes, however, is that in the main lawyers employed within the Crown Prosecution Service do not themselves prosecute in the more serious cases.  They normally instruct counsel in private practice to conduct these prosecutions. In a nut-shell, the Act has created a centralised prosecution system, which can impose uniform policies and which has also placed most of the key decisions in the process either in the hands of lawyers rather than policemen or at least subject to lawyers’ scrutiny and review.

   How effective has the new Service been?  Measuring the efficiency of the Crown Prosecution Service is no straightforward matter. Indeed, the C.P.S. Inspectorate, in its most recent report on the Service, reported widespread misreporting of case outcomes. Thus, even were one to try to measure efficiency in crude terms of prosecution success rates, it would appear that the outcomes of more than 100,000 magistrates’ courts cases and 6.000 Crown Court cases are wrongly recorded each year. [6]   The Glidewell Report, and more recently the Narey Report, [7] have in recent times highlighted a range of further defects.  To be frank, the Crown Prosecution Service has been subject to persistent criticism ever since its foundation. [8]  

 

   Section 3(2) of the 1985 Act lay down the Director’s duties.  They include the duty to take over all criminal proceedings commenced by the police. In addition, the Director may commence proceedings himself, as well as advising the police on all matters relating to criminal offences etc.  One of the great debates during the passage of the Prosecution of Offences Act through Parliament was, what was to become of the traditional citizen’s right to bring a private prosecution?  In the event, the statute retained the private prosecution alongside the new Crown Prosecution Service.  What I propose today is to examine how successfully these two forms of prosecution have co-existed during the past fifteen or so years.

 

   The term ‘private prosecution’ covers a multitude of sins.  As the Philips Commission noted in its review of the English prosecution system, the private prosecution includes not merely cases where private individuals bring prosecutions but also proceedings conducted by private agencies like the R.S.P.C.A., the N.S.P.C.C. etc or even retail stores prosecuting shoplifters.  Indeed, the Commission noted that the only statistically significant numbers of private prosecutions occurred in cases of shoplifting and common assault.  This is likely to be the case still.  It is sometimes claimed that anything up to 40% of cases are prosecuted by individuals and bodies other than the C.P.S.   However, my target will not be the run-of-the-mill assault prosecutions started by one neighbour against another, but the high-profile cases which catch the public eye and which therefore play the largest role in colouring people’s perceptions of private prosecution. Perceptions, after all, are at least as important as the reality. [9]

 

What do the English actually think of the private prosecution?

 

   It is interesting that, when we examine the terms in which the individual’s right to bring a prosecution is discussed, the right has now assumed a hallowed, constitutional status. In Gouriet v. Union of Post Office Workers, a decision of the House of Lords which, it is to be noted, antedates the founding of the Crown Prosecution ServiceLord Diplockspoke of the right in these terms:

 

“In English public law every citizen still has the right, as he once has a duty (though of imperfect obligation), to invoke the aid of courts of criminal jurisdiction for the enforcement of the criminal law by this procedure.  It is a right which nowadays seldom needs to be exercised by an ordinary member of the public, for since the formation of regular police forces charged with the duty in public law to prevent and detect crime and to bring criminals to justice and the creation in 1879 … of he office of Director of Public prosecutions the need for prosecutions to be undertaken (and paid for) by private individuals has largely disappeared; but it still exists and is a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.” [10]

 

In the same case, Lord Wilberforce also observed that,

 

“This historical right which goes right back to the earliest days of our legal system, though rarely exercise in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority.” [11]

 

The Royal Commission on Criminal Procedure, in its report reviewing the operation of English criminal procedure, in 1981, also described the right of private prosecution as “an effective safeguard against improper action by the prosecuting authority.” [12]

 

   More recently still, in a Law Commission consultation paper published in 1997, we find concern expressed lest the system of consents, which has grown ever more prevalent of late – a system whereby a prosecution may only be brought if someone like the D.P.P. (or the Attorney General) consents, may serve to erode the rights of the private prosecutor. This has excited comment before. During parliamentary debate of the Prosecution of Offences Bill, a former government law officer and a Law Lord, Lord Simon of Glaisdale, noted that consent provisionsundermoined the fundamental right of the citizen to bring a private prosecution. [13]   Similarly, in his influential work on Law Officers of the Crown, Edwards warned us of

“substantial inroads into the much-acclaimed principle of the ordinary individual’s right to set the criminal law in motion. … It is difficult to escape the unpalatable conclusion that the fundamental principle as to private prosecutions has become so eroded by legislation that the vaunted image of this right as one of the corner-stones of our constitution is no longer justified.” [14]

 

In its recent consultation paper, the Law Commission has accepted that consents are not an appropriate vehicle for controlling trivial or unjustified prosecutions. [15]

 

 

   Not all commentators, it has to be acknowledged, have been equally enthusiastic about private prosecutions.  For instance, Lord Hutchinson, a noted criminal practitioner, in the course of the debates in Parliament during the passage of the Prosecution of Offences Bill in 1985, pointed out that the problem with private prosecutions is that, far from being acts of noble selflessness, they very often “may be based on personal spite, on revenge, on financial gain, on blackmail, on fanaticism.” [16]    Not infrequently, provided that one’s resources permit it, the private prosecution proves to be just one more weapon in the legal armoury when parties pursue the legal feud.  My eye was caught by a dispute in the Chancery Division in December of last year (1999), Murphy v. Lord Rotherwick. [17]   The case concerned that English obsession, shooting rights. One of the many features of this bitterly-fought litigation, which had erupted over Mr Murphy’s right to organise the slaughter of innumerable game birds on a portion of LordRotherwick’s estate, was that as one manoeuvre in the legal battle Lord Rotherwick had threatened privately to prosecute Mr. Murphy for breaches of the Wildlife and Countryside Act 1981.  Even leaving this sort of dispute without quarter to one side, it is worth observing more generally that private prosecutions are often born of rancour which has broken out between an individual and the official prosecuting organs.  There is undoubted force in a point made in a Law Commission report that, “in view of the difficulty in bringing a private prosecution, resort to that measure is likely to happen only after there has been some disagreement between the individual and the prosecuting authorities.” [18]   The decision to prosecute privately is not lightly taken.

 

What are the perceived benefits of the private prosecution?

 

   It is sometimes claimed that the existence of a right of private prosecution serves to ginger up the performance of the Crown Prosecution Service. [19]   It is probably not that difficult to make this case in the English criminal prosecution system, given the acquittal rates, particularly in serious cases – acquittal rates that would be deemed intolerable in many other systems. Although the statistics are difficult to interpret, according to the latest figures to be released although 62% of defendants appearing before the Crown Court in 1998 pleaded guilty, of the remaining 38% - roughly 31,000 cases – 36% of defendants pleading not guilty were convicted, the other 64% either being acquitted by juries or, as often happens, being discharged by the judge following the prosecution offering no evidence. Juries acquitted in 43% of cases – a slightly higher figure than has been registered in previous years. [20]   Whilst one can be confident that the acquittal rate is significantly lower before the magistrates’ courts, which try over 95% of criminal cases, it seems evident that if the expectation of a successful prosecution outcome within the system is this low – and English conviction rates certainly contrast starkly with those achieved by prosecutors in many other jurisdictions – this might furnish some justification for permitting the private prosecution, in order to mop up some of the cases which otherwise tend to slip through the net.

 

The private prosecution has sometimes been strikingly vindicated: R v. Davies (1995)

 

   The private prosecutor, of course, is sometimes vindicated, scoring conspicuous successes.  The Davies case in 1995 is a good example. It was, I believe, the first privately prosecuted rape case brought in England or Wales.  The case was brought by   two prostitutes.  The Crown Prosecution Service, having considered the evidence assembled by the police, had decided in 1992 that there was not a sufficient prospect of conviction under the guidelines set out in its Code [21] and therefore did not proceed with the case.  The prostitutes, who received backing from the English Collective of Prostitutes, which loosely fulfils the role of a trades union, and from another organization, Women Against Rape, launched a private prosecution.  Davies was indicted on counts of rape, indecent assault, false imprisonment, wounding and assault causing actual bodily harm arising out of the two incidents which had taken place in December 1991 and in September 1992. The lawyers in the case acted without a fee. The jury at MaidstoneCrown Court found him guilty on the majority of counts, and notably on one of the counts of rape. He was sentenced to 14 years’ imprisonment. 

 

   Such cases do not necessarily redound to the credit of the Crown Prosecution Service. [And it was perhaps unfortunate that the Davies trial followed upon the heels of another case, which had hit the headlines, in which a woman used the civil courts in order to obtain judgment against a man who had raped her after the Crown Prosecution Service had declined to bring charges.] [22]   The Times commented, more in sorrow than in anger, “the (Davies) case will be seen as another dent in the reputation of the C.P.S.” [23]

 

Disadvantages of the private prosecution  

 

   Whilst the Davies case may seem emphatically to vindicate the private right to prosecute, the private prosecution also suffers from several well-understood disadvantages.  These serve, if anything, to discourage private parties from exercising their right to launch prosecutions:

 

(i) Disadvantage: it may prove very expensive to bring a private prosecution

  The costs of bringing a prosecution are, in the first instance, generally borne by the prosecutor.  [As the court inBritish Waterways Board v. Norman [24] reminded us, although the Court and Legal Services Act 1990 introduced legitimate conditional fee agreements, such agreements are not to operate in criminal cases (s.58(10).]  Legally aided representation is not generally available – save to resist an appeal to the Crown Court. [25]   Therefore, it may prove a costly exercise to bring a private prosecution.  Even if, at the end of the trial, the court decides to order that the prosecutor’s costs be paid out of central funds, this may not meet all the costs. The prosecutor may therefore end up out of pocket. If the accused is acquitted, the private prosecutor may indeed even find that he has to bear part of the successful accused’s costs as well as his own. [26]    As we shall see in the three cases I discuss at the end of this paper, major prosecutions brought in this way are often part of  a public campaign, may rely upon public subscription or upon the support of other private bodies and interest groups.

 

(ii) Disadvantage: the private prosecutor does not enjoy access to the resources of the institutional public prosecutor.

 

   The accredited prosecution agencies can call upon a wide range of resources when investigating crime and when preparing their cases.  The private prosecutor, however, does not enjoy these advantages.  Before the private prosecutor has cleared a first hurdle and the defendant has been committed for trial, the police and the Crown Prosecution Service are under no obligation to co-operate with the private prosecutor. In R v. D.P.P., ex p. Hallas,[27] for example, a mother sought privately to prosecute a motorist for causing death by reckless driving, following the death of her son in a motorcycle accident.  The C.P.S. had decided only to charge the motorist with driving with excess alcohol and careless driving.  The mother sought an order of mandamus from the court instructing the D.P.P. to hand over all police statements, photographs and other evidence in his possession in order to enable her and her legal advisers properly to consider whether this charge was justified by the evidence in the case.  The D.P.P. refused to do so.  This refusal was upheld by he Divisional Court.  Although Lloyd, L.J. did say that he “would not want to be party to any decision restricting or inhibiting the right to bring a private prosecution, rare though it is nowadays in the case of individuals,” [28] in essence, the private prosecutor is, as she has always been, on her own.  The 1985 legislation may well have left the private prosecution intact.  However, the official prosecuting organs are under no obligation to lend their assistance – unless they choose to do so on a voluntary basis. [In fact, in the Hallas case the Crown had offered Mrs Hallas its list of witnesses so that she could set about interviewing them for herself.] 

 

   One can see that there might be good reasons of public policy for not affording private prosecutors assistance. Given that one of the prime objectives of the C.P.S. is to achieve uniform prosecuting criteria throughout the country, it would be odd if the Service co-operated in creating exceptions to its own policies. This would be particularly strange, if the C.P.S., for instance, had informed a party that it had been decided that he would not be prosecuted. 

 

   The situation is altered, however, once the case is committed for trial.  At this point, it makes no difference whether the case is prosecuted by the C.P.S. or a private prosecutor.  The rights and duties affecting the prosecutor are the same, and witnesses may be compelled to produce evidence. [29]

 

(iii) Disadvantage: The courts tend to assume that, because there exists a right to prosecute, the private prosecutor can be expected to exercise it.  The courts even take this into account when a party tries to compel the D.P.P. to institute proceedings: The Camelot case.

 

In R v. D.P.P., ex p. Camelot Group plc [30] Camelot, which for the time being is the group responsible for running Britain’s national lottery, was concerned about the activities of another body which it considered was running a rival lottery.  Camelot  tried to persuade the D.P.P. to prosecute the operator of that ‘lottery.’ The D.P.P., however, declined on the ground that he did not believe that the rival’s activities were unlawful.  Camelot sought judicial review of this decision, arguing that the D.P.P.’s decision was based upon an error of law. Judicial review was refused, partly because Camelot had an alternative remedy of its own that it could pursue: it could bring a private prosecution against the offending body.  Paradoxically, rthare than putting pressure upon the official organs to prosecute, this case seems to illustrate the opposite – namely, that private prosecutors may be expected to exercise their rights; to put up or shut up. (In the Camelot case Simon Brown, L.J. did also warn civil courts to be most wary in venturing to decide disputed matters of criminal law: “other things being equal, criminal disputes, even upon pure issues of law, are best decided: (a) in criminal courts, and (b) between the parties most directly affected by their outcome”). 

 

(iv) Disadvantage: the private prosecution, particularly the high-profile private prosecution,  tends to breed strongly partisan feeling: Friend (1997)

 

   Because it tends to develop as a campaign of action following the perceived inability of the C.P.S. to deliver justice, the high-profile private prosecution is by nature emotive and  it encourages partisan attitudes.  These can even spill across into other proceedings.  For instance, in the case of Friend, [31] where a 15 year-old had been convicted of murder, one ground of appeal was that two of the 12 jurors in the case were seen to have been wearing favourssupporting the private prosecution of the presumed killers of Stephen Lawrence.  (On the Stephen Lawrence case, see below).  It was said that there were similarities between the two cases.  More particularly, since the private prosecution in the Stephen Lawrence case had collapsed before the end of the trial of Friend, any supporters would have been deeply disappointed at this outcome and this in turn might have affected their judgment in the Friend case. Otton, L.J. in the Court of Appeal had not difficulty in rejecting this ground of appeal.  The similarities between the cases were slight, at best.  “Although it might have been wiser for the jurors not to have expressed support for an attempt to remedy injustice in another case,” it was hard to see how this afforded a real danger of bias on the part of the jurors.[32]   Maybe so.

 

(v) Disadvantage: The private prosecution may cut across other criminal justice policies, even making their implementation more difficult: take the case of cautioning: Hayter v. L (1998)

 

    Police cautioning [33] was introduced with the admirable objective of diverting young offenders, of previous good character, from the court system in minor cases, provided that they acknowledged their guilt.  Although cautioning has never operated as a formal bar to a private prosecution - and young offenders about to be cautioned are so warned, there is clearly something mildly contradictory (and even potentially oppressive) in a system where, on the one hand, the police take an informed decision that the best way of dealing with a particular offender is to caution him rather than to push his case through the courts system but then, on the other, the victim – or in the case in hand, the victim’s father, is allowed to prosecute the offender to the utmost.  It is not hard to imagine that official policy in this matter could be subverted, or at least undermined, if cautioned offenders were routinely prosecuted by private individuals or their supporters.

 

   In Hayter v. L [34] a young man was assaulted by some youths.  The police took the view that a caution would meet the case.  The youths, who were of previous good character, were legally represented and warned that a caution did not preclude their being subsequently prosecuted.  The victim’s father, who, perhaps significantly, was a solicitor, brought a private prosecution against the two youths for affray and assault occasioning actual bodily harm.  The justices sitting in the youth court which tried the case stayed the prosecution ruling that a prosecution brought in these circumstances amounted to an abuse of process.  On appeal, however, the Divisional Court held that anything like routine exercise of a jurisdiction to stay prosecutions in such cases would amount to “a most significant constraint upon private prosecutions.”  The court was not persuaded that prosecutors were likely to bring a flood of such prosecutions.  However, Schiemann, L.J. did add some general words about private prosecutions and the problems that they raise within the system:

“There manifestly is some force in the submission that to permit a private prosecution in these circumstances may serious interfere with the future functioning of the cautioning procedure. ... I quite understand and to some degree  share the anxieties which the justices clearly had.  However, that ... is a disadvantage inherent in the law allowing private prosecutions.  There are indeed disadvantages in allowing private prosecutions, ... but then there are also advantages. In any event, Parliament has for centuries clearly been persuaded that it is desirable to allow private prosecutions.” [35]

In such circumstances, it was not appropriate for the justices to use their abuse of process jurisdiction to restrict the hallowed rights of the private prosecutor.

   It will already be plain that the private prosecution is not in all circumstances the most productive adjunct to the English criminal justice system.  However, just to emphasize the point, let us examine three notable case histories of recent years which each illustrate different facets of English criminal procedure.  I repeat that such cases are not statistically significant but are important because, first, they catch the public eye [36] and therefore influence public perceptions – possibly disproportionately so, and, secondly, owing to the fact that they are the most hotly contested cases, they serve to test the system to its limits thereby revealing all the more clearly its strengths and weaknesses.

Three recent illustrations of high-profile private prosecutions

 

(1) What ought to motivate the private prosecutor?  Ought the private prosecutor to be actuated by high-minded motives?  The Marchioness Disaster (1993)

 

   On a late summer’s evening in August 1989 a small pleasure-boat, ‘The Marchioness’, 90 tons, with 132 passengers and crew, was cruising on the Thames.  A party was being held on board.  A much larger dredger, ‘The Bowbelle,’ 1457 tons, collided with ‘The Marchioness’, which sank.  51 people, most of them young, lost their lives. Many more people were injured. The dredger ‘Bowbelle’ was a boat with a jinxed history. It subsequently emerged that the ‘Bowbelle’ had been involved in no less than one half of the 18 collisions that had taken place on the Thames in the previous ten years. Having examined the papers, the Director of Public Prosecutions in April 1990 announced that the captain of ‘The Bowbelle’ would be charged with the offence of failing to keep a proper look-out contrary to the Merchant Shipping Act 1988, s.32, but that no other charges would be brought. [37]

   This did not satisfy everyone by a long chalk. In October 1990 proceedings were unsuccessfully brought to contest the Director’s decision not to bring other charges. In July 1991 the widower of one of the ladies who had lost her life in the tragedy, Mr.Glogg, brought a private prosecution against the owners of ‘The Bowbelle’ and four of their employees, charging them with manslaughter.  Following this initiative, proceedings were instituted by the defendants seeking to have the private prosecution stayed. [38]   What was the motive for the prosecution?  It was no secret that Mr. Glogg, and others left bereaved by the collision, were most unhappy that the investigation of the circumstances had been confined to a limited inquiry conducted by the Marine Accident Investigation Bureau.  Although Mr Gloggwas not actually a member of the group – he did, however, employ the same solicitor - the family members who made up the Marchioness Action Group really wanted a full public inquiry into the events leading up to the collision. MrGlogg, too, desired a public inquiry.  The defendants argued that it was improper to allow a prosecution to go ahead because, in the absence of a public inquiry, the objective was to achieve publicity. Mr Glogg’s objective was in some sense to embarrass the authorities. This was to manipulate and misuse the prosecution process.

   In the Court of Appeal Lloyd, L.J., as he then was, considered the relevance of a prosecutor’s motives for bringing a prosecution.  In earlier cases it had been said that a court could not intervene to stay a prosecution merely because it thought that the case ought not to have been brought and even believed that the prosecution was simply “mean-minded, petty or animated by hostility.” [39]    On the other hand, if there are no grounds whatever for bringing the prosecution – in particular, no evidence to support the charge, and as in one case it is simply intended to embarrass someone, [40] then the court will intervene.  Here, however, the motives were mixed.  As Lloyd, L.J. said:

“At the start Mr Glogg’s state of mind may well have been that he wanted both a public inquiry and a prosecution for manslaughter. The fact that a public inquiry has now been ruled out does not mean that his in instituting the prosecution should now be regarded as improper. If there is evidence that a defendant has been guilty of an offence, then a desire to see him prosecuted and, if found guilty, punished is not an improper motive, especially where the prosecutor s one of the bereavedEven if Mr. Glogg’s motives were mixed, the court should be slow to halt a prosecution unless the conduct of the prosecution is truly oppressive. [41]

   There is little doubting that publicity was the prosecutor’s principal motive in this case. After all, during the course of the summer of 1991, the Director of Public Prosecutions had invited Mr Glogg’s solicitors to hand over any new evidence which they had come by so as to enable the Director to decide whether or not to take over the prosecution, but the solicitors declined to do so. The tactic was to engender so much publicity that the Director would subsequently find it impossible to take over and discontinue the prosecution.  But, again, Lloyd, L.J. did not believe that this meant that the court should stay the proceedings:

“I do not accept that it would necessarily be wrong for a private prosecutor to attempt to dissuade the Director from taking over the conduct of the prosecution by force of publicity.  I suspect he is made of sterner stuff. But, even if it were wrong, it does not show that the prosecutor’s purpose here in bringing the prosecution was oppressive or improper.” [42]  

   If the objective behind the private prosecution was to force the holding of a public inquiry, it is arguable that the stratagem ultimately succeeded.  Ten years later, in August 1999, the government announced that an open public inquiry would be held, with a senior judge, Clarke, L.J., presiding.  Clarke, L.J. reported in December of the same year. In February 2000 the government accepted all 44 recommendations made in his report. Amongst other things, the report explicitly said that the Marchioness disaster was an incident that “cried out for public scrutiny.”  Not perhaps surprisingly, then, in February 2000 the Minister of Transport, Mr. John Prescott, announced that a full judicial inquiry would be conducted into the disaster, presided over by Clarke, L.J.  Even as I speak to you today, the inquiry is under way.

   The question one has to ask is, is this an appropriate use of the prosecution process?  In the case of The Marchionessmatters simmered on for over a decade, and the case probably demonstrates how a truly determined private prosecutor can bring very considerable political pressure to bear on the authorities.  Is that what a prosecution system is meant to do?

(2) The wheels of justice, it is often said, grind small and slow.  By their nature, proceedings which are the subject of the private prosecution may drag on for years. One might legitimately have misgivings as to the justice of such proceedings: The Hillsborough Disaster (1989-2000)

 

   On 15 April 1989 Liverpool F.C. were to play Nottingham Forest F.C. in the semi-finals of the F.A. Cup.  The match was to take place at a neutral ground - the Hillsborough Stadium, in Sheffield. The police, who were responsible for security inside and outside the ground were commanded by Chief Superintendent Duckenfield.  His second in command was Superintendent Murray. Both men were serving officers of the South Yorkshire police force. As a result of a gate being opened to allow further spectators into the ground before pens within the ground, which were already overfull with fans, were closed, there was gross overcrowding and, in the ensuing crush, 96 Liverpool fans lost their lives.  The government ordered a public inquiry to be held and the late Lord Chief Justice, Lord Taylor of Gosforth, was appointed to preside over it.  The inquiry heard oral evidence from 174 witnesses, and Lord Taylor submitted an interim report in August 1989. [43] He presented a final report in January 1990, containing recommendations designed to improve safety at sporting events. [44]    Meanwhile, another police force, the West Midlands police, had been appointed to conduct an investigation into this incident, and more particularly to review the operations of the South Yorkshire police on this occasion.  They reported to the Director of Public Prosecutions in March 1990.  The Director took legal advice from two senior counsel and in August 1990 announced that there was insufficient evidence to justify the prosecution of any member of the South Yorkshire police for a criminal offence arising out of the 96 deaths at Hillsborough.  At this point, the coroner [45] held his inquiry into the incident.  Because death may have “resulted from an injury caused by a police officer in the purported execution of his duty,” [46] the coroner was obliged to summon a jury. In March 1991 the coroner’s jury returned a verdict of accidental death in respect of the 96 fans who had lost their lives in Sheffield almost two years earlier.  [The relevant legislation, [47] it should be noted, expressly provides that “at a coroner’s inquest into the death of a person who came be his death by … manslaughter  …, the purpose of the proceedings shall not include the finding of any person guilty of the … manslaughter …”]  In November 1993 members of the bereaved families sought to have this inquest verdict quashed, but their action failed.

 

   In addition to the Director of Public Prosecutions, who had considered whether criminal charges ought to be launched, and the coroner’s jury which had pronounced upon the cause of death, the police instituted disciplinary proceedings against the two officers for neglect of duty.  The disciplinary proceedings, too, came to nothing.  As was then the case, when Chief Superintendent Duckenfield retired from the force on medical grounds, the disciplinary proceedings automatically ceased.  It was then decided that disciplinary proceedings against Superintendent Murray, too, should be dropped.

 

   But matters did not rest here. Following the broadcast of a television programme some seven years later, in 1996, which suggested that new evidence had come to light, between March and May 1997 the Crown Prosecution Service investigated these fresh allegations.  In June 1997, however, the government interior minister, the Home Secretary, announced that he was appointing another senior judge, Stuart-Smith, L.J., to investigate whether fresh evidence had come to light which had not been available to Lord Taylor’s inquiry in 1989.  Stuart-Smith, L.J. reported to parliament in February 1998. Her concluded that there was nothing to justify further judicial inquiry or the re-opening of Lord Taylor’s findings. [48]   Once these findings had been endorsed by the Home Secretary, who announced in Parliament that he, the Attorney-General and the Director of Public Prosecutions accepted Stuart-Smith, L.J.’sconclusions, from an official angle, the matter was closed. 

 

   The families of the bereaved, however, who had formed an organisation called the Hillsborough Family Support Group, [49] refused to accept this.  Having at first failed, on procedural grounds, to launch a private prosecution against the two police officers for manslaughter, a second successful attempt was made by one lady on behalf of the support group on 13 July 1998, nine years after the tragic events in Sheffield, charging the policemen with

(i)                  manslaughter in respect of two of the victims,

(ii)                wilful neglect to perform a public duty, and

(iii)               in respect of the more senior police officer, attempting to pervert the course of justice by having lied about the circumstances in which the gate into the ground came to be opened. 

The police officers requested the Director of Public Prosecutions to exercise his statutory power to take over the proceedings [50] and then to stay the proceedings, as he is entitled to do under the 1985 legislation. [51]   In December 1998 the Director let it be known that he refused to intervene.

 

    This episode is interesting because, in a letter to the support group, the D.P.P. explained the circumstances in which he would take over and discontinue proceedings. [52]   He mentioned three situations:

 

(i)                  Cases where there is clearly no case to answer. Such cases, he said, would amount to “an abuse of the right to bring a prosecution.”

(ii)                Cases where the public interest factors tending to militate against prosecution clearly outweigh those factors tending in its favour.  These would include malicious and vexatious prosecutions; cases where the defendant is terminally ill or where nothing is to be gained by prosecuting him.

(iii)               Cases where the prosecution is clearly likely to damage the interests of justice.

 

If we can just focus on the first of these, ‘cases where there is clearly no case to answer,’ how can one reconcile this rather relaxed standard with the fact that when the Dorector of Public Prosecutions (and his Service) launch a prosecution, under the Code for Crown Prosecutors they have to apply the stringent test of a “realistic prospect of conviction”?   In his letter to the support group, the D.P.P. put it in this way:

 

“… we recognise that there will be some cases that do not meet the Crown Prosecution Service (C.P.S.) Code tests where nevertheless we will not intervene.  It has been considered that to apply the Code tests to private prosecutions would unfairly limit the right of individuals to bring their own cases…”

The D.P.P. went on to explain that “before this decision can properly be made the C.P.S. must be assured that all relevant material has been considered.”

   Similarly, in a letter to the two policemen, the D.P.P. amplified this point:

“It is quite possible for a private prosecution to continue, notwithstanding that the C.P.S. is not satisfied, on the basis of its own assessment of the strength of the evidence, that the evidence would pass the evidential sufficiency in the Code (that there should be a ‘realistic prospect of conviction’).  … Private prosecutors are not bound to apply the Code for Crown Prosecutors when deciding whether to institute proceedings, nor do the courts employ the evidential sufficiency test in the Code when deciding whether there is a case to answer.  The Service therefore recognises that it is not appropriate to intervene to terminate a private prosecution without good reason.” [53]   

It was inevitable, then, that the D.P.P. would decline to intervene and take over the prosecution in order to terminate it.  It was not clear that there was no case to answer on the manslaughter charges and the wilful neglect counts. [54]

   In March 1999 the policemen applied to the Divisional Court in a bid to halt criminal proceedings against them. Two matters concerned them.  First, that the proceedings were being brought at all; but secondly, that the substantial cost of defending themselves would fall to their charge.  Thus they asked the Divisional Court:

 

(i)                  To review the D.P.P.’s decision not to intervene and stifle the private prosecution; and

(ii)                To challenge their police force’s decision that it had no power to provide its officers with financial backing either in respect of these judicial review proceedings or in respect of the private prosecutions.

 

   Laws, L.J. upheld the D.P.P.’s decision not to take over the private prosecution.  He agreed that the Director’s description of the two standards by which the decision to prosecute is judged was consistent with the intentions of the 1985 Act.  Indeed, the judge held that if the D.P.P. were to apply to private prosecutions the same standard that applies to cases the Crown Prosecution Service institutes, the effect would be the “emasculation of s.6(1),” which would itself amount to an unlawful policy. After all,

“The very premise of s.6(1) must be that some cases will go to trial which the D.P.P. himself chooses not to prosecute.” [55]

Laws, L.J. then  turned to consider the three criteria the D.P.P. uses to determine whether the case is one in which he ought to intervene to halt the prosecution. 

(i)                  The ‘clearly no case to answer’ criterion was approved without hesitation.  After all, there can hardly be any quarrel with stopping a case in which no reasonable decision-maker could conclude that there was sufficient evidence for the case to go forward.  The process of the courts cannot be abused in this manner, with prosecutions being brought that can benefit no-one. 

(ii)                The Director’s views as to public interests factors, too, the Court approved.  It is implicit in s.6(1), Laws, L.J. concluded, that individuals may well take a different view to the Director as to what is in the public interest. He hesitated to impose an “illegitimate constraint upon the right of private prosecution,” and certainly there seemed no justification for counsel for the police officers’ argument that the D.P.P. should, when weighing the public interest factors, begin by favouring discontinuance.

(iii)               The interests of justice consideration also met with the approval of the Court.

   In this particular instance, it was evident from the affidavit prepared by the C.P.S.’s Director of Casework (who was the person who had actually drafted the letter setting out the D.P.P.’s reasons for not taking over the prosecution of these two police officers) that the D.P.P. had carefully weighed the competing factors. On the one hand, the very gravity of the charges – and, notably, the two charges of manslaughter by criminal negligence - weighed in favour on non-intervention.  As against that, there was (a) the fact that the D.P.P. in the first instance, and Stuart-Smith, L.J. in his review of the case, had concluded that no prosecution was justified; (b) the fact that the policemen had been informed that they would not be prosecuted; [56] (c) the fact of delay, and the effect it would have on the policemen – ten years had elapsed since the disaster in 1989; (d) the fact of delay, and effect it could have on witnesses’ recollections etc. and (e) the intervening ill-health of one of the police officers.  Although Laws, L.J. does give a hint that he might have been inclined to decide the matter otherwise, [57] he concluded that the D.P.P.’s “decision not to discontinue is no more unlawful than is the policy which the D.P.P. applied.” [58]

   The trial of Messrs. Duckenfield and Murray came on before Hooper, J. at Leeds Crown Court this summer (2000). The trial lasted six weeks.   The jury first returned a verdict of not guilty in respect of the junior officer, former Superintendent Murray. The jury then failed to agree on a verdict in respect of Chief Superintendent Duckenfield, following more than 24 hours of deliberations spread over five days. The prosecutor immediately applied for a retrial. Hooper, J., however, refused this application. [59]   He then proceeded to order that the majority of the costs of the prosecution and the defence – thought to be a sum in the region of £4 million – be paid out of public funds.  After no less than 11 years of investigation and proceedings, this tragic episode drew to a close. 

 

   Once again, one is left asking, was this an appropriate use of a right of private prosecution? 

 

(3) If the private prosecution fails, for whatever reason, in the current state of the law that prevents the Crown Prosecution Service from bringing a case at a later date, even if fresh and compelling evidence emerges in the interim:The Stephen Lawrence case.

 

   In April 1993 a black youth, Stephen Lawrence, was murdered without provocation by a gang of 5 or 6 white youths in Greenwich, London.  The police inquiry suffered from serious defects, but suspicion came to centre around a particular group of youths. In July 1993, however, the Crown Prosecution Service reviewed the papers but, having also taken legal advice, formed the view that at that time it did not have sufficient evidence to charge anyone with the murder. It was therefore decided to ‘discontinue’ the Stephen Larence case.  The Service did nevertheless intimate that if further evidence came to light, the case would be resuscitated – and, indeed, the Lawrence file was reviewed again in both October and November of that year.  This senseless racist killing stimulated public revulsion and it became a matter of intense public concern, particularly amongst the coloured community of Greenwich, that no-one had been brought to book.

 

   A campaign was launched, and eventually a private prosecution was begun.  The C.P.S., it should be said, was “dismayed” when it learned that this step had been taken.  It warned the solicitor behind the move that the identification evidence was fatally flawed and that unless fresh evidence was forthcoming a private prosecution was bound to fail.  However, the Service’s entreaties fell on deaf ears. In 1995 magistrates committed two defendants for trial, having found that they had a prima facie case to answer. A third defendant was subsequently added to the indictment. As Sir William Mcpherson explained later in his report on the case, the fact that two defendants were committed for trial “does not mean that the earlier C.P.S. decision to discontinue was flawed. Different considerations governed the two decisions.” [60]   In the event, the trial of Messrs. Acourt, Knight and Dobson began at the Old Bailey in April 1996 before Curtis, J. The defence promptly lodged objection to the poor quality of the identification evidence and, after legal argument, Curtis, J. decided that the identification evidence had to be excluded.  In consequence, the prosecution case against the three defendants, which was weak anyway, collapsed and they were formally acquitted.  The result now is that, if further evidence were ever to come to light indicating that any of these three parties was in fact implicated in the killing, in the present state of English law none of them could again be charged with the offence of murdering Stephen Lawrence. [61]   Significantly, one of the recommendations in Sir William Mcpherson’s report is that “consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented.” [62]

 

Some concluding thoughts

 

   If one recalls the ringing phrases of Lords Diplock and Wilberforce in the Gouriet case in which they elevated the private citizen’s right to prosecute to quasi-constitutional status, [63] the three causes célèbres I have just discussed seem to pose the question, In what sense do such cases really embody a constitutional safeguard?  And even if they do provide some protection against official inertia and partiality, does this offset the accompanying disadvantages?  It is evident that these major cases can eventually prove a significant burden to the public purse.  They sometimes seem to be principally a vehicle to allow parties to vent their feelings and frustration or to put pressure on other public organs. They may even more closely resemble vendettas than the characteristically dispassionate form of prosecution familiar to English lawyers. Because they are often part of concerted public campaigns, they can also generate substantial pre-trial prejudice, thanks to the copious press interest. In the Stephen Lawrence case a private prosecution, which looked to be doomed from the start, has even queered the pitch for any future public proceedings in respect of three potential suspects. Finally, it is questionable exactly how the public perceive the role of private prosecutions.  These high-profile cases may well serve to re-assure everyone that there has been no cover-up or evasion by public bodies, but there are other and less eccentric ways of providing guarantees against official failings. If one focuses on these private prosecutions, one sometimes has the uneasy sensation that this institution, which in any case is the product of a curious transition from a procedure that first evolved faute de mieux but that became an exalted right of English citizenship, may require reconsideration. 

 

   The organisers of this Congress clearly thought that it would be instructive for you to learn more about a system rooted in traditions quite alien to your own.  I hope that I have succeeded in that task in some measure.  However, I would also say that, having been induced to reflect on my own system, I do just begin to wonder whether we do not have something to learn from systems with established traditions of public prosecution. 

 

 

 

 



[1] The comparative scholar, Mirjan R. Damaska, in his recent work Evidence Law Adrift (1997, Yale U.P.), speaks of the “litigants as a propulsive force” (p.44).

[2] See Hebert Packer, The Limits of the Criminal Sanction (1969, Stanford); Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1961).

[3] Report of the Royal Commission on Criminal Procedure (1981. Cmnd.8092) para.6.6.

[4] See Prosecution of Offences Act 1879.

[5] England and Wales were divided up into 14 separate zones until the Glidewell Report’s recommendations were implemented: see The Review of the Crown Prosecution Service (1998. Cm. 3972). 

[6] The Inspectorate’s Report on the Thematic Review of Performance Indicators Compliance and Case Outcomes(2000).

[7] Review of Delay in the Criminal Justice System (1997).

[8] The latest attempt to combat the problems is the Crown Prosecution Service Inspectorate Act 2000, which provides for the appointment of Her Majesty’s Chief Inspector of the Crown Prosecution Service. Nor is the C.P.S. the only prosecuting body whose activities have been the subject of recent criticism.  In June 2000, following a bungled drugs prosecution of “two of Britain’s biggest gangsters” by Customs and Excise, including illegally tapped rooms and misleading the court, which leaves an estimated bill of £50 million, Judge Butler published a report on the case in June 2000. Customs & Excise has 1,192 investigators and is responsible for approximately three-quarters of seizures of controlled drugs. It has an annual prosecution budget of £30 million.  The Attorney General announced in Parliament on June 8, 2000 that a review of the prosecuting function of the Customs & Excise was to take place, in particular to see if there is a case for transferring any or all of its functions to another body, such as the Crown Prosecution Service; the final report in anticipated towards the end of October 2000.

[9] I cannot help but recall the O.J. Simpson trial at this point.  It was anything but a typical American trial.  However, there can be little doubting that the powerful images of the case (of which, I suspect, we will hear much more in the years to come as more details of the investigation become available) have had a significant impact on the way in which U.S. criminal proceedings are perceived by the public.

[10] [1978] A.C. 435, 497-8.

[11] Ibid., p.477.

[12] 1981, Cmnd. 8092, para.7.50.

[13] Hansard (H.C.) 29 November 1984, vol. 457, col. 1050.

[14] The Law Officers of the Crown (1964) p. 397.

[15] Criminal Law: Consents to Prosecution (1997, Consultation Paper no. 149).

[16] Hansard (H.L.) 17 January 1985, vol.458, col.1149.

[17] (1999) 21 December, LEXIS transcript.

[18] Criminal Law: Consents to Prosecution (1997: Consultation Paper no. 149) para.4.3.

[19] See remarks of Lords Diplock and Wilberforce in Gouriet v. Union of Post office Workers, quoted in footnotes 10 and 11, supra.

[20] Criminal Statistics England and Wales 1998 (2000, Cm. 4649).  It is noteworthy that the conviction rate has dropped by 4 points since 1997.  As the influential Criminal Law Review observed in an editorial, “It should be a major cause for concern that the prosecution are apparently unable or unwilling even to get started in almost one third of contested crown Court trials. The inefficiency and unfairness involved is obvious” ([2000] Crim.L.R. at p.330).

[21] The Code states that the evidential test is that “Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge” (Code for Crown Prosecutors,para 5.1).  Additionally, there is a public interest test whereby the crown prosecutor weighs the public policy reasons for and against prosecution in the individual case (para. 6).

[22] The suit was brought by Lorraine Miles in 1989.  She was awarded £25,000.

[23] The Times, 20 September 1995, p.1.

[24] (1993) 26 H.L.R.232 (prosecution under the Environmental Protection Act 1990).

[25] Legal Aid Act 1988, s. 21(1).

[26] Royal Commission on Criminal Procedure (1981. Cmnd. 80-92-1) para. 170.

[27] [1988] Crim.L.R.316.

[28] LEXIS transcript.

[29] Pawsey [1989] Crim.L.R. 152 (allowing an application under the Criminal Procedure (Attendance of Witnesses) Act 1965.

[30] (1997) 14 April.  Cited with approval in R v. Medicines Control Agency, ex p. Pharma Nord (U.K.) Ltd. (1998) 44 B.M.L.R. 41.  The last sentence in the extract from SchiemannL.J.’s judgment cannot easily be supported perhaps.

[31] [1997] 2 All E.R. 1011.

[32] Ibid., p.1023.  The test for bias is laid down by the House of Lords in Gough [1993] A.C. 646.

[33] See ‘The Cautioning of Offenders’ (Home Office Circular no. 18/1994).

[34] [1998] 1 W.L.R. 854.

[35] Ibid., at p. 859.

[36] All these cases hit the front page of the English national press.

[37] It was almost as though a driver of a vehicle who had mown down 51 pedestrians were charged with driving without due care and attention rather with a more serious offence, such as causing death by reckless driving.

[38] R v. Bow Street Stipendiary Magistrate and another, ex p. South Coast Shipping Co. Ltd and others [1993] 1 All E.R. 219.

[39] v.Telford Justices, ex p. Badham [1991] 2 Q.B. 78, 90 per Mann, L.J.

[40] R v. Horseferry Road Magistrates’ Court, ex p. Stephenson (1989) The Times, 25 January.

[41] [1993] 1 All E.R. at p. 223.

[42] Ibid., at p. 223.

[43] The Hillsborough Stadium Disaster (1989, Cm.765).

[44] The Hillsborough Stadium Disaster (1989, Cm.962).

[45] Coroner is a very ancient office.  The coroner is required to inquire into a variety of reported deaths – notably, violent or unnatural deaths (Coroners Act 1988, s.8(1)(a)).  It is not the coroner’s duty or that of any jury the coroner summons to find any person guilty of murder, manslaughter or infanticide: “a coroner’s inquisition shall in no case charge a person with any of those offences” (s.11(6)).

[46] Coroners Act 1988, s.8(3)(b).

[47] Coroners Act 1988, s.11(6).

[48] Scrutiny of Evidence relating to the Hillsborough Football Stadium Disaster (1998, Cm. 3878).

[49] Their website is to be found at www.hfsg.org.

[50] Prosecution of Offences Act 1985, s.6(2): “Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”

[51] Prosecution of Offences Act 1985, s.23(3): “Where at any time during the preliminary stages of the proceedings, the Director gives notice under this section to the clerk of the court that he does no want the proceedings to continue, they shall be discontinued with effect from the giving of that notice …”

[52] Extracts from the letter are cited in Laws, L.J.’s judgment in R v. D.P.P., ex p. Duckenfield [1999] 2 All E.R. 873, 878-9.

[53] See [1999] 2 All E.R. at p.879.

[54] Even though the D.P.P. did not think there was sufficient evidence on the additional charge of perverting the course of justice, since this did not represent the gravamen of the criminality charged, he was content to allow that to proceed also. This decision was subsequently quashed by the Divisional Court and the policeman did not face a charge of attempting to pervert the course of justice.

[55] Ibid. at p.883.

[56] This can weigh as a factor in making it an abuse of process to prosecute someone: Croydon Justices, ex p. Dean[1993] 3 All E.R. 129.

[57] “The D.P.P. might, in my judgment, have decided to discontinue.  The tragic events at Hillsborough have been the subject of repeated, detailed, thorough inquiries. Nearly ten years have passed.  But the judgment was for the D.P.P. to make...” ([1999] 2 All E.R. at p. 887).

[58] Ibid. loc. cit.

[59] The Times, 27 July 2000.

[60] The Stephen Lawrence Inquiry (1999. Cm. 4262-I) para.39.42.

[61] Ibid., para.2.3.

[62] Recommendation no.38.

[63] See text accompanying notes 10 and 11, supra.