Malicious Prosecutions and the risk to Private Prosecutors

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Many of you know that I have been prosecuted numerous times by Lancashire police and for malicious reasons.

I brought a civil case against Lancashire police for a malicious prosecution back in 2014.  I was of course acquitted of their malicious charges, I did nothing wrong but stand up to a miscarriage of justice.  A long battle ensued and I eventually settled out of court for £35,000.

That is what i received, as the injured party.  The police as the ‘malicious prosecutors’ had to pay out substantially more than this.

On top of my compensation, they had to pay their own legal costs AND my legal costs.  The total cost to Lancashire police was around £135,000, a significant sum for such a vexatious attempt to prosecute me.

This had me thinking, what would happen if this was a private prosecution?

The UK has provision for individuals to seek criminal redress if they feel they have been let down by the police.  This is occasionally brought to court and occasionally successful.  Private prosecutions are a protected right but as a private prosecutor, you have serious responsibilities and serious consequences should you abuse this process.

Firstly, the private prosecutor must present an application to a judge.  This is an application only to start a case.  What the prosecutor needs to do is present an honest and reasonable case to a district judge, presenting facts and evidence, verbal or written of an offence that is within time etc.

It could be said that it would be easy then to get a summons.  Evidence presented at this application stage could be faked, could be misinterpreted.  It could be a down right lie, all that is needed is to show the judge that a crime may have been committed and that it may have been by a person.

A properly presented application conforming to all criminal procedure rules is not so simple and they are often rejected.

The obligation is on the prosecutors to ensure that all reasonable steps have been taken to ensure the prosecution is correctly brought and they are not conducting a prosecution with an improper motive, because, if a summons is issued, the prosecution is said to have started.

This is where serious problems for private prosecutors can begin.  The prosecutors must then present a evidence bundle, within strict court guidelines, presenting a case of fact and evidence.  The private prosecutor must also present a file of unused material, even if that material would weaken or damage the case, it must be produced under strict criminal procedure rules.

CPS be and are often are notified of private prosecutions and they can ask to see the full case that has been presented and the likely defence.  They also request unused material and this must be disclosed by the private prosecutors.  The defendant has the opportunity to show a defence to CPS and inform the CPS of what material the prosecutors would likely have as unused material.  The CPS will contact police if they originally investigated and they must provide their investigation material and their unused material.  Everything must be disclosed for a fair hearing.  If the prosecution is deemed to have a ‘realistic prospect of conviction’, then the case may be allowed to continue if not, CPS can take over and shut it down.

A private prosecutor has no say in this.  Some think you can apply for an injunction to stop CPS being involved, but you would need a very strong case to block the CROWN from doing their job.

Lets say you try to get an injunction against the crown simply because you want to keep the prosecution going with improper motives simply to target the defendant? Well any evidence presented to CPS to show any reason why the private prosecutor would attempt to do this would have serious and potentially criminal implications for private prosecutors, trying to mislead the Crown!

Lets say that the CPS found that the private prosecutors had tried to blackmail a witness to give a statement and did not want CPS to snoop over the evidence which may uncover this?  That may sound extreme but as an example, this could see the private ‘vexatious’ prosecutors behind bars!

Lets just say a private prosecution was brought against someone for allegations of ‘harassment’.  As an example, let’s say the alleged defendant had called somebody ‘a vile old man‘.  Yes, I know this is not harassment, but for this scenario, lets just say this was seen as an offence.

To continue the scenario, lets assume that private prosecutors are fully aware that the ‘alleged victim’ had in-fact posted malicious messages calling the defendant  a ‘paedophile’ or ‘a kiddy fiddler’ and it was due to this the defendant went on to refer to his attacker as a ‘a vile old man’.  This changes things somewhat, as the defendant is now no longer seen as the aggressor anymore and there would not be a realistic prospect of conviction.  This is because, in law, a defence of harassment is that in the particular circumstances the pursuit of the course of conduct was reasonable.  It would be reasonable to call someone ‘vile’ for maliciously brandishing then a kiddy fiddler or paedophile.

This is where private prosecutors have huge responsibilities.  They must be honest at every stage, especially the application stage, as the Judge at the application does not hear a defence or likely defence and does not see any unused material, to be blunt, the judge gets one side only.  The onus is on the private prosecutors to ensure the application is not based on improper motives.

The judge listens to this ‘one side’ and determines that, and on the belief that the presented facts are true, they will allow the private prosecutors to continue….

Fortunately, there is legal redress for victims of malicious prosecutions, and as I pointed out at the start of this article, the penalties against those who intentionally flaunt the law in this area may need deep pockets or risk losing their livelihood.

Malicious prosecutions can be started in civil as well as criminal cases and the claim against misuse can be sought for either.

Further reading on this subject. https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/malicious-prosecution-and-the-risk-to-private-prosecutors