• (防止)私人檢控|戴啟思
  • 2020-08-29    

 

Private Prosecutions Explained

The Secretary of Justice (“SJ”) took over two private prosecutions last Monday to kill them off.

Many people have criticised her decision. They see it as her derailing good cases against two men-one a police officer-who had arguably broken the law. Their prosecution had been given the go-ahead by a magistrate who issued court summonses against them. If a judicial officer had started the criminal process against the two men, who was the SJ to stop it?

In taking over the cases, the SJ invoked her position as a prosecutor acting in the public interest. In this role, she can continue with a prosecution and assume responsibility for its future conduct, or she can discontinue it. Whether you agree with the decision to take over the cases is another matter, but the SJ’s power to intervene in private prosecutions exists.

From where does the power come? To answer this question, it is necessary to understand how criminal proceedings were started centuries ago and note how private prosecutions pre-date public prosecutions.

In medieval times in England, there were no police forces to investigate crime and detain criminals and no lawyers who would bring criminal cases against suspects in the courts. Communities were expected to keep the King’s peace by policing themselves and, if they did not, collective punishments might be imposed on them.

The courts would try criminal cases, but it was the job of individuals to bring suspects before a judge and then undertake to prosecute the alleged offender.

The Crown might go after suspects whose crimes were heinous, and a severe threat to the King’s peace. These were offences like treason, armed robbery, large-scale brawling, mayhem (intentionally disabling a man so that he could not perform military service) and murder. However, crimes like simple theft, assault and battery had to be taken up and prosecuted by the victims who had suffered the loss or injury.

This system continued mostly unchanged until the first part of the nineteenth century when the explosive growth of populations in English cities made it necessary to establish full-time police forces to deal with urban crime. Householders paid property taxes for municipal services. These included employing police officers to detect crime and bring offenders to court.

If cases were minor, police officers would prosecute before magistrates in ‘Police Courts’. If a case was serious, and a jury was required, it would go to another court where lawyers would handle the prosecution.

Cases were now divided between the new ‘public’ prosecutions and the diminishing class of ‘private’ prosecutions. The job of magistrates in issuing summonses to start prosecutions was, nonetheless, the same in both types of prosecution.

First, the magistrates would have to be satisfied that the information they were asked to act on disclosed a known criminal offence and that there was enough evidence to show that the allegation had substance.

Next, they would have to check that the offence was not one with time limits outside which no prosecution could be brought and was one which could be brought without a special authorisation such as a consent from the Director of Public Prosecutions. They needed to be careful if a foreign country was mentioned in the information that the relevant law had an extra-territorial effect because most laws applied only to England & Wales. If the case passed all these checks, then magistrates were almost duty-bound to issue a summons.

About 40 years ago the responsibility for public prosecutions in England passed from individual prosecuting authorities in cities and counties regions to a national body, the Crown Prosecution Service (CPS), and policies about prosecuting began to be harmonised.

Before then, one prosecuting authority might have looked at an offence using one set of criteria and another body using different criteria would not have prosecuted at all or treated the crime as deserving only a caution.

By publishing detailed guidelines about prosecutorial decision-making and identifying set criteria for specific offences, the CPS established a uniform approach to prosecuting in England & Wales.

Perhaps the single most important criterion used by the CPS is the test for going ahead with a prosecution which is that there should be a reasonable prospect of conviction if the case went to trial.

The test excludes cases where there is only some evidence of guilt. It also excludes cases where there appears to be a good case against an accused. The prosecutor who approves a prosecution because there is a reasonable prospect of a conviction says that, on an objective view, a conviction is more likely than not at the end of the day.

In making this value judgment, the prosecutor looks at more than the evidence suggesting guilt of a suspect. He or she takes into account any other evidence that points the other way; what defences could be raised; the credibility and likely performance of witnesses; what kind of contrary evidence might be put forward, such as an alibi. After considering all these matters, the prosecutor makes an informed judgment and says whether the ‘reasonable prospect’ test has been met.

When a private prosecutor approaches a magistrate and asks that a summons should issue, there is no guarantee that the intending prosecutor has performed such a thorough assessment of the case. The magistrate may have been persuaded that something like a decent case for prosecution exists and will have issued a summons on that basis but, if the prosecution is, in reality, no more than a prima facie case that will not be enough to secure a conviction.

Hong Kong has never had regional justice centres compared to England & Wales, so it has not been a significant problem in achieving consistency in approach to prosecuting. The Secretary for Justice has, for many years, published criteria used in prosecution decision-making these include the ‘reasonable prospects’ test.

A private prosecutor who is acting in good faith might overlook one or more of the factors that a public prosecutor always considers and, because of this, mistakenly assumes his or her case is stronger than it is.

The basis for the SJ’s intervention is that all prosecutions -public or private-for the same offences should use the same criteria. It would not be in the public interest for a man or woman to have to undergo the ordeal of a trial when it is known that there is a no reasonable prospect of securing a conviction.

If a private prosecutor disagrees with the SJ’s decision to discontinue a case, he or she can seek judicial review of a decision to intervene. The Court of First Instance can look at the SJ’s conclusion, and the materials relied on in deciding to discontinue and, applying the ‘reasonable prospects’ test say whether the decision to end the prosecution was legally sound.

The problem with these two cases is not so much with the fact that there was an intervention but that the SJ is doing the intervening. The SJ is an Exco member and, more recently, a member of the new National Security Commission. The argument is that it is difficult to reconcile those roles with being an impartial minister of justice when handling protest cases.

It seems that once every few years the SJ’s dual position as chief prosecutor and Government minister is questioned in the context of about prosecutorial decision-making in particular cases.

There is a way to avoid this awkward situation. It is for the SJ to devolve to the Director of Public Prosecutions decision-making in cases like these. The English Attorney General had done this after several high-profile cases in the 2000s when public confidence in the office became a major political issue. The arrangement seems to be successful.

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