A year ago we observed that the families of the deceased had expressed a firm intention to mount a private prosecution in the wake of the findings from the Fatal Accident Inquiry. Earlier today, those families were told that they cannot launch private prosecutions.

Rejecting the appeal for private prosecutions, Lord Justice Clerk Lady Dorrian, along with Lord Menzies and Lord Drummond Young, said the Crown Office had applied the correct test on the legal requirements of charges of dangerous driving.

The Judges observed that in Scotland although it remains open to a private citizen to apply to the court for permission to bring a private prosecution where the Lord Advocate has declined to prosecute, the circumstances in which such permission may be granted have repeatedly been described as “exceptional”.

Unlike in Scotland, in England and Wales any person has the right to commence a prosecution for the vast majority of criminal offences. They are to all intents and purposes the same as criminal proceedings commenced by the Crown Prosecution Service. In fact, in this jurisdiction, private prosecutions are a rapidly growing area.

The police and other traditional law enforcement agencies have suffered massive cutbacks and they no longer have the resources to dedicate to certain types of crime. In the current climate of austerity, budgetary constraints and crimes of increasing complexity the use of private prosecutions are on the increase.

Before embarking on a private prosecution there are a number of factors that the would-be private prosecutor should know:

  • The lawyers acting for a private prosecutor have a duty to act as ministers of justice and therefore must act to the same high standards expected of a public prosecutor.
  • The private prosecutor is under an obligation to perform criminal disclosure obligations as provided for under the Criminal Procedure and Investigations Act. If disclosure is not properly complied with the risk of the prosecution failing is high, as the proceedings are likely to be deemed an abuse of the court process.
  • At any time the Director for Public Prosecutions may take over and either continue or discontinue a private prosecution.
  • The burden of proof rests on the prosecutor to prove the defendant has committed each element of the offence in question. These elements must be proved to the required standard, namely beyond reasonable doubt that the defendant committed the offence in question. Generally, there is no burden of proof on the defendant, nor are they required to give evidence.
  • If the defendant can demonstrate the prosecution was malicious, for example if evidence was fabricated or the prosecution was brought with malice, then the defendant may institute a civil claim against the private prosecutor for a malicious prosecution.
  • At the conclusion of the criminal proceedings the private prosecutor is entitled to make an application to the court to recover their legal costs and the court may, in relation to proceedings in respect of an indictable offence, order the payment of costs out of central funds of such an amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings.
  • A private prosecution can be ‘stayed’ (stopped) by the court where it is found that to allow the proceedings to continue would amount to an abuse of process. In those circumstances this may result in both a costs award being issued against the prosecutor in favour of the defendant and may prevent the prosecutor from recovering costs from central funds.