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One Law For The Rich

Geir Madland

By Geir Madland on 17/08/14

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One Law For The Rich
A recent editorial in the Independent claimed that police and legal budget cuts are increasingly forcing people to fund their own criminal actions for offences including sex attacks, violent assaults and multi-million pound frauds, raising fears of a “two-tier” justice system, with cases not reaching court because victims, except wealthy corporate ones, can’t afford the legal costs.

In 2012 barrister Tamlyn Edmonds wrote a piece for the Justice Gap website, describing the common misconception that only the Crown, government agencies and other public bodies can bring prosecutions.  Any individual has the right to bring a private prosecution as the victim of crime: a historical right that goes back to the earliest days of our legal system and is contained within section 6 of the Prosecution of Offences Act 1985.  

In 2013 the then Attorney General Dominic Grieve described how “until the last half of the Twentieth Century, in England and Wales, criminal offences were prosecuted by a curious mix of private individuals, police officers or police solicitors, county prosecutors and, oftentimes, local firms of solicitors”. The office of the Director of Public Prosecutions (DPP) was created in 1879 but it took another century for a Royal Commission to recommend that the police should no longer be responsible for prosecutions, except minor traffic and regulatory offences. The Crown Prosecution Service (CPS) came into being in 1983.

There is indeed nothing new about private prosecutions: Oscar Wilde famously lost one against the Marquis of Queensberry in 1895, and the parents of Stephen Lawrence also lost their private prosecution of his alleged killers in 1996.

In 1990 the Hillsborough Family Support Group launched an unsuccessful private prosecution of Chief Superintendent David Duckenfield and his deputy Bernard Murray after the Director of Public Prosecutions failed to act. Bernard Murray was cleared by the jury which was unable to reach a verdict on Duckenfield.  25 years after the disaster, David Duckenfield, who had been allowed to retire from the police on a full pension, continues to have his leadership that fateful day questioned, this time at public inquests which are, for the summer recess, currently adjourned.

In 1995 two women brought the first private prosecution for rape after the CPS dropped their cases. Christopher Davies was jailed for 14 years. The accusers said they had been forced to take the law into their own hands "to gain justice". They had been helped by Women Against Rape and the English Collective of Prostitutes.

In 2012 Nicola Brookes won a landmark private prosecution against Facebook after police failed to act against internet trolls posting death threats in response to her support for a contestant on the TV series “X Factor.” 

Last month Kenyan businessman Ketan Somaia was convicted of fraud at the Old Bailey in the UK’s biggest ever private prosecution, brought by law firm Peters & Peters on behalf of Indian businessman Murli Mirchandani, who justified his action, saying: “I have made sure that his conduct is seen for what it is: criminal and dishonest”.

In March of this year, the Lord Chief Justice, Lord Thomas of Cwmgiedd, described the growth in private prosecutions “at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions”.

So, what’s to stop Mr Big bringing any prosecution if he can afford it? The attorney-general or the director of prosecutions can halt a criminal case if it is considered spurious, and a judge can throw out an improperly brought case.  Without recourse to public authorities, private prosecutions may rely on unregulated private detectives, who are unable to make arrests, have no search warrants and no access to criminal records. Legal advisers for commercial organisations also warn that a private criminal prosecution is far harder to control than a civil action once it is underway.

Yet private prosecutions are frequently brought by corporate and industrial bodies, including the Federation Against Copyright Theft (FACT), which jailed Anton Vickerman, the founder of surfthechannel.com, in 2012, and Virgin Media, whose private prosecution led to the conviction of Munaf Ahmed Zinga and others of selling unauthorised set-top boxes. Controversially, Virgin had hired the services of the Metropolitan Police for a quarter cut of any moneys recovered, which the Court of Appeal subsequently ruled a “serious conflict of interest”. 

Last year, the RSPCA hired former CPS inspector Stephen Wooler to review its controversial prosecutions policy after pressure from MPs and campaigners, following its decision to bring a £326,000 private prosecution against the Heythrop hunt in David Cameron’s Oxfordshire constituency.

Next month, a court will hear aircraft engineer Michael Doherty’ private prosecution of a Metropolitan Police civilian worker, alleging false claims in a witness statement after Doherty reported his concerns about child grooming. “These organisations are failing to do their jobs so people are taking it into their own hands for DIY justice,” he said. “I think the position is now that the Establishment is clearly very worried about private prosecutions.”

As George Bernard Shaw wrote in The Intelligent Woman’s Guide to Socialism and Capitalism in 1928: “It is a common saying with us that there is one law for the rich and another for the poor. This is not strictly true: the law is the same for everybody:  it is the incomes that need changing... Nevertheless, rich prisoners are favoured by being able to spend large sums in engaging famous barristers to plead for them, hunting up evidence all over the country or indeed the world, bribing or intimidating witnesses, and exhausting every possible form of appeal and method of delay. We are fond of pointing to American cases of rich men at large who would have been hanged or electrocuted if they had been poor. But who knows how many poor people are in prison in England who might have been acquitted if they could have spent a few hundred pounds on their defence?”