• 無法不私了|戴啟思
  • 2020-06-27    

 

Going Private

Private prosecutions are in the news. The Legco Member, Ted Hui, recently succeeded in persuading a magistrate that he had sufficient evidence against a police officer for him to issue three summonses requiring the officer to attend court to face serious criminal charges. This success occurred soon after he had succeeded in securing a summons to require a private individual to attend before a magistrate to answer an allegation of a serious motoring offence.

The Secretary of Justice then published a statement commenting on the power given to individuals to start private prosecutions. She explained that although a person could start a private prosecution, they might not see it to its end. She had the power to intervene. Her prosecutors in the Department of Justice could take over and continue with the case, or they could terminate it.

The reaction of many people to the news that Mr Hui could set the machinery of the criminal law in motion on his own would have been one of surprise. Prosecutions are, by definition, public matters. Private individuals would not seem to have much to do with the prosecution process, except as defendants or witnesses.

After all, Police officers investigate criminal offences. Civil servants working in the Department of Justice decide whether cases should proceed to trial. Magistrates and judges try them and, if there is a conviction, some defendants will go to a very public institution, a prison and may even be required to pay a fine as well, which goes into public coffers.



However, even to this day, the prosecution process is built on a structure that assumes individuals, and not the Government, take on the responsibility for starting a prosecution. The paperwork that must be completed to initiate criminal proceedings before a magistrate requires an identifiable individual to act as the ‘informant’ or ‘complainant’. In nearly all cases, that will be a police officer or other public officer who is authorised to bring criminal proceedings. Still, it sometimes is a private individual or limited company that starts the process.



The requirement for a named individual to stand behind a prosecution dates back to a time when there were no organised police forces in England. If someone stole your property and you wanted him or her in court, you had to investigate the matter yourself and go before a magistrate to persuade him to summons the suspected thief. You bore the expenses of the trial and any witnesses that attended.



Tradespeople had a common interest in preventing theft and fraud and sometimes formed associations and fundraising to meet the cost of prosecuting a defendant, including hiring a lawyer to appear in court. Such associations and clubs existed until the formation of professional police forces in the 1840s. The new police forces took over responsibility for law and order and prosecutions, but police officers simply replaced the private prosecutor in the paperwork.



Today, most people are content to allow police officers to investigate offences and let public prosecutors handle the offences in court. Public prosecutors do not cost anything to the victims of crime. They bring some order to the business of prosecuting by following uniform legal principles and by them not pursuing cases which are very weak or have been trumped up by individuals to vex and annoy others. A public prosecution office ensures some kind of quality control.



However, public prosecutors do not always get it right when it comes to deciding to prosecute. For example, they may be constrained by finance and staffing, so that it makes sense not to prioritise certain offences, such as fraud unless the evidence is strong, and the amount involved is considerable. A prosecuting authority may have the policy to caution and not prosecute for some offences. Or the investigators may have missed evidence or not appreciated its significance with the result that a decision not to prosecute was based on an incomplete picture.



It is in these circumstances that private prosecutors my emerge. I recall from my time at the Bar in England that some department stores that were plagued by shoplifters regularly prosecuted thieves on their own. They did not want to see thieves let off with a caution. They tried to deter shop theft. They could only do that if they had control of the prosecution process and brought all shoplifters to court.



Sometimes a private prosecution seems the only way that victims can achieve justice if a prosecuting authority is not interested. The families of ninety-six Liverpool football supporters who were crushed to death at Hillsborough football ground in 1989 raised funds to prosecute two police officers responsible for safety at the ground.



The English Crown Prosecution Service had investigated the case and decided not to charge the police officers for criminal negligence. The Hillsborough Family Support Group succeeded in bringing the officers to trial in 2000 but, to its disappointment, one officer was acquitted, and the jury could not reach a verdict in respect of the other officer, and he went free too.



Like in Hong Kong, the Director of Public Prosecutions in England and Wales can intervene in a private prosecution and take it over and stop it dead in its tracks. However, the public prosecutor has to tread carefully here. If the private prosecution has no chance of succeeding because there is not a scrap of evidence and a magistrate had been misled into allowing a summons to issue, there is no problem.



However, where there is some substantial evidence that would if believed, mean that there was a chance of a conviction, then for a public prosecutor to intervene to end the case demands some kind of explanation.



I say ‘demands’ because a court can make a public prosecutor explain a decision to intervene and discontinue a prosecution. In 2012 the Supreme Court of the United Kingdom heard a case where the Director of Public Prosecution had done this. Although the court found in a majority decision that the Director had acted lawfully in that particular instance, the justices emphasised that bringing a private prosecution was a right, not a privilege.



In the Supreme Court’s judgment, the words two senior judges who looked at the topic in 1978 were recalled. Lord Wilberforce said that the right to mount a private prosecution remained “a valuable constitutional safeguard against inertia or partiality on the part of authority”. The other judge, Lord Diplock spoke of “a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of ... authorities to prosecute offenders”.



I do not know how Mr Hui’s private prosecutions will fare, and it would be wrong to speculate, but he is now in challenging constitutional territory.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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