Criminal Cases Review Commission invites Attorney General and Justice Select Committee to review role of private prosecutors

[Fawkes Cat]

I don't know what company TIL is (Trainline?)

Not Trainline. Transport Investigations Ltd.

I tried to find a pithy quote from the front of their website (http://transportinvestigations.co.uk/) to explain what they do, but their wording is somewhat unclear. My understanding is that they are contracted by many of the TOCs to carry out investigations and prosecutions into travel irregularities (no ticket, short ticket, wrong ticket - that sort of thing). It's the view of many contributors to this forum that TIL are focussed solely on bringing cases to court, and so seem to take insufficient notice of evidence or argument in mitigation when presented by those they have taken an interest in.

 

[Sherlock49]

Train companies have the benefit of specific law covering offences, but Virgin Media could certainly prosecute in the courts if they believed you had committed a relevant offence.

I agree, such as if you criminally damaged their property, e.g. cutting a Virgin Media cable deliberately.

They could send you a letter asking for an out of court settlement and advising you that it's only voluntarily. However, if you choose not to pay, they will present their case in a criminal court. If you didn't cut the cable, you'd go to court, and be found not guilty.

If you did cut it, you'd be stupid not to accept the out of court settlement.

They, could, of course tell the local constable, and let them deal with it, but they don't have to. Arguably, low level offending should be dealt with privately, between the parties concerned. Would stop the police being tied up with petty matters.

In fairness, I probably wasn't clear enough - my objection is to train companies having the benefit of strict liability bylaws. The talk of cutting cables is a complete distraction - I'm not aware of any train companies prosecuting train vandals and criminal damage privately, it's only fare evasion that they do this with. I don't even really have a problem with RORA prosecutions, because the onus is on the train company to prove intent.

There is a topic directly above this one at the moment that is 3 pages long about GA prosecuting someone for using an Oyster card against the terms and conditions, and trying to charge £150 despite there being no actual loss to GA. In a Civil Court, the damages GA could claim would equate to the financial loss they suffered - no claim would therefore be possible - however because there is a threat of criminal prosecution, the poster seriously considered paying the amount they were asking for. There is plenty of debate on the topic about if they are in the right or not, which indicates it's not clear cut. I'm not suggesting that the judiciary are corrupt, but I am saying that there is an imbalance of power between a rail company which understands the system inside out, can point out case law and take legal advice easily and someone who quite probably doesn't have these options - certainly without paying more than the penalty is likely to be.

Moderator Edit: Changed TfL to GA who are the TOC considering prosecution.

 

[Tetchytyke]

The issues raised about it costing money for the average person to attend court etc and defend their case are perfectly valid - but not the fault of the TOC. It seems like you want reform to court procedures, e.g. prosecution liable for costs, rather than a ban on private prosecutions.

No, I want a ban on private prosecutions. The current system encourages and rewards charlatanism.

If TIL, or whoever, are allowed to privately prosecute, it allows them to use the threat of prosecution to obtain funds from people without merit. See the recent thread on Oyster. The very fact they can privately prosecute is what allows them to use the threat of prosecution to extort money from people. And I deliberately use the word extort, for that is what it is- extortion.

Taking a day off work and travelling to a Magistrates' Court, potentially far from home, is inconvenient. Even if you win, and even if you get your travel costs back, you won't get compensation for the hours of research nor your loss of earnings. And even if you did, you can be certain TIL or whoever won't tell you this.

BTW, as someone who works in law, I would say that all legal action is a gamble. I've helped clients take strong cases to tribunal and watched them lose, and I've helped clients with very weak cases go to tribunal and win. And that's a tribunal with legal experts making the decision. Magistrates are not legally qualified.

The TOCs have immediate access to lawyers who are experienced in the field and know how to soft-soap the Bench. Joe Bloggs has access to none of that, unless they pay. Legal fees are likely to be higher than the "settlement", with no guarantee they are recoverable (indeed they are usually not recoverable in full).

TOC sends one or two fairly factual letters. If people pay up, it's not because the TOC has pressured them. If you want to see pressure, default on a loan or credit card and see how many letters and threats you get then!

They're not "factual", though, they are the opinion of the TOC. They are opinions enforced with threats- pay us £200 or we'll prosecute you.

Interesting you mention debts. I'm a qualified debt advice manager with 15 years' experience working for debt advice charities. Letters about missed payments are not even close to being in the same ball park, because the Financial Conduct Authority put a stop to the empty threats that used to be employed 15 years ago.

And that's what's needed here- a regulator with teeth. Sadly the rail industry does not have one and so the shysters who used to hand out Statutory Demands like confetti now do the same for the likes of TIL.

Finally, I'm very comfortable with appearing in Courts and Tribunals- it's been my job for most of my adult life. But I'd still struggle with the Magistrates' Court because I'm not familiar with it. The thought will terrify most lay people, and it is that fear that the likes of TIL prey on to obtain "settlements" far beyond anything that could be described as reasonable.

 

[Tetchytyke]

It's the view of many contributors to this forum that TIL are focussed solely on bringing cases to court

TIL are not interested in taking things to Court. TIL are interested in using the threat of Court to obtain very large financial rewards from people, rewards far beyond what they would actually get as a costs order from a successful prosecution.

I would call it extortion. Others will disagree. But TIL don't actually want to prosecute people, they want to terrify them into handing over huge wads of cash. If they prosecute and win they'll get very little money- most of the money the defendant would pay in fines/victim surcharges/etc (which could, in fairness, be more than any settlement) would actually go to HM Treasury, not TIL and not the TOC.

I see the new line TIL are taking is "we don't do settlements, but in this case as a special favour we will do a massive settlement because RailForums gives bad advice". Aye right. It's amazing how their "special favour" involves them getting wads of cash they'd never hope to obtain at the Magistrates' Court It's a high-stakes game of Call My Bluff.

 

[tspaul26]

I wonder if I might put in my tuppence worth?

By way of background, I should explain that I am a solicitor qualified in both England and Scotland, have worked for the Procurator Fiscal and have experience in both the civil and criminal sides of the Magistrates’ Courts.

It is my experience that private prosecutions in England generally fall in one or other of two practical categories: (FIRST) ‘political’ prosecutions where the object of the proceedings is to advance some other goal or lobby group interest, such as the RSPCA; (SECOND) prosecutions by commercial parties where there is some perceived procedural benefit (e.g. greater chance of recovering costs, obtaining a trial diet more speedily, applying pressure to the defender).

In my view, the former is unacceptable and oppressive. The latter - which I have undertaken for clients in a number of matters - is problematical as the prosecution is not truly motivated by the public interest, but rather with a view to private gain.

Overall, it is my firm view that the system of private prosecution in England should be reformed along the lines pertaining in Scotland whereby before a private prosecutor may act against the accused he must first obtain a bill of criminal letters from the High Court of Justiciary. In practice, this would be likely to prevent almost all TOC prosecutions for fares offences.

Finally, I note that a number of comments have been made regarding the independence of the judiciary as a potential safeguard. I may confess that I have on many occasions encountered English judges who, shall we say, left much to be desired, especially in summary criminal causes. I do not rate this as an effective or adequate protective provision.

 

[Llanigraham]

No, I want a ban on private prosecutions. The current system encourages and rewards charlatanism.

Do you realise how many bodies use what you term "private prosecutions"?
Is DVLA a "charlatan"?
Is Dwr Cymru as such?
Is British Gas also?

If TIL, or whoever, are allowed to privately prosecute, it allows them to use the threat of prosecution to obtain funds from people without merit. See the recent thread on Oyster. The very fact they can privately prosecute is what allows them to use the threat of prosecution to extort money from people. And I deliberately use the word extort, for that is what it is- extortion.

So British Gas "exort" money when they prosecute someone for say by-passing their gas meter?

Taking a day off work and travelling to a Magistrates' Court, potentially far from home, is inconvenient. Even if you win, and even if you get your travel costs back, you won't get compensation for the hours of research nor your loss of earnings. And even if you did, you can be certain TIL or whoever won't tell you this.

If I get an excessive speeding prosecution and have to attend Court that could be hundreds of miles from here. That too is inconvenient but is no different. And to be honest, in a TIL case there is no compulsion to attend Court, you can submit a written submission.

BTW, as someone who works in law, I would say that all legal action is a gamble. I've helped clients take strong cases to tribunal and watched them lose, and I've helped clients with very weak cases go to tribunal and win. And that's a tribunal with legal experts making the decision. Magistrates are not legally qualified.

Magistrates cannot be legally qualified and are there to hear cases "of their peers". They take legal advice from their Clerk, and long may the system continue.

The TOCs have immediate access to lawyers who are experienced in the field and know how to soft-soap the Bench. Joe Bloggs has access to none of that, unless they pay. Legal fees are likely to be higher than the "settlement", with no guarantee they are recoverable (indeed they are usually not recoverable in full).

Really?
All the "private prosecution" cases I presented (for a Government Dept) at Court had no lawyers, solicitors involved on the day. I presented the cases for the Officers at our office, who prepared and often served our own Summon. The only person to oversee and check the paperwork was the Section HEO.

They're not "factual", though, they areopinion of the TOC. They are opinions enforced with threats- pay us £200 or we'll prosecute you.

No, any prosecution is based on the facts presented as evidence, in line with the Legislation being used for that prosecution, be that railway or any thing else. They are not opinions.

Interesting you mention debts. I'm a qualified debt advice manager with 15 years' experience working for debt advice charities. Letters about missed payments are not even close to being in the same ball park, because the Financial Conduct Authority put a stop to the empty threats that used to be employed 15 years ago.

That suggests that you have little experience of the Magistrate Courts.

And that's what's needed here- a regulator with teeth. Sadly the rail industry does not have one and so the shysters who used to hand out Statutory Demands like confetti now do the same for the likes of TIL.

A strong description of people you admit to have little experience of.

Finally, I'm very comfortable with appearing in Courts and Tribunals- it's been my job for most of my adult life. But I'd still struggle with the Magistrates' Court because I'm not familiar with it. The thought will terrify most lay people, and it is that fear that the likes of TIL prey on to obtain "settlements" far beyond anything that could be described as reasonable.

Can I suggest that it might be worth your while, once C19 has eased, in spending some time in the public gallery at some Magistrate Courts and getting some experience of them. As part of my training before I presented cases I spent several weeks in several Courts and learnt much.

 

[Llanigraham]

I wonder if I might put in my tuppence worth?

By way of background, I should explain that I am a solicitor qualified in both England and Scotland, have worked for the Procurator Fiscal and have experience in both the civil and criminal sides of the Magistrates’ Courts.

It is my experience that private prosecutions in England generally fall in one or other of two practical categories: (FIRST) ‘political’ prosecutions where the object of the proceedings is to advance some other goal or lobby group interest, such as the RSPCA; (SECOND) prosecutions by commercial parties where there is some perceived procedural benefit (e.g. greater chance of recovering costs, obtaining a trial diet more speedily, applying pressure to the defender).

In my view, the former is unacceptable and oppressive. The latter - which I have undertaken for clients in a number of matters - is problematical as the prosecution is not truly motivated by the public interest, but rather with a view to private gain.

Overall, it is my firm view that the system of private prosecution in England should be reformed along the lines pertaining in Scotland whereby before a private prosecutor may act against the accused he must first obtain a bill of criminal letters from the High Court of Justiciary. In practice, this would be likely to prevent almost all TOC prosecutions for fares offences.

Finally, I note that a number of comments have been made regarding the independence of the judiciary as a potential safeguard. I may confess that I have on many occasions encountered English judges who, shall we say, left much to be desired, especially in summary criminal causes. I do not rate this as an effective or adequate protective provision.

The problem is that the term "private prosecution" is inaccurate. It implies prosecution by a private person, whereas in fact many of the prosecutions are from the likes of Government Depts, power companies, local authorities, etc. And rarely are they heard by Judges, but by the accused person's peers, Magistrates.

 

[Haywain]

Finally, I note that a number of comments have been made regarding the independence of the judiciary as a potential safeguard. I may confess that I have on many occasions encountered English judges who, shall we say, left much to be desired, especially in summary criminal causes. I do not rate this as an effective or adequate protective provision.

I made the point that the judiciary is independent of (as in not controlled by) the government. That should not be read to mean that it is flawless. However, for the purposes of discussing the use of prosecutions by TOCs we are really talking about magistrates for the most part.

 

[Bletchleyite]

No, I want a ban on private prosecutions. The current system encourages and rewards charlatanism.

This is my opinion as well. In Scotland it is very difficult to bring one to the extent that it is de-facto banned. ScotRail seems to manage to cope, by having adequate staffing and barriers to ensure that people are made to purchase a ticket. And they can always pursue people in the civil courts for non-payment if they wish, just like any other private business can.

I can see no case whatsoever for the railway or any other organisation than the CPS to be able to bring prosecutions in England. In the railway case it is simply abused as a form of extortion (because people fear Court, even if they need not) in cases that are at best vexatious.

At a push I would concede for the Government to be able to set up a statutory Railway Prosecutions Agency tasked with doing it properly, however I really see no need.

Obviously cases of actual fraud (e.g. falsification) could be prosecuted, as they would be if committed against anyone else, by the CPS, as these cases would be in the public interest.

 

[tspaul26]

The problem is that the term "private prosecution" is inaccurate. It implies prosecution by a private person, whereas in fact many of the prosecutions are from the likes of Government Depts, power companies, local authorities, etc. And rarely are they heard by Judges, but by the accused person's peers, Magistrates.

I suppose at the level of abstract theory it is more correct to say that all prosecutions are brought in the name of the Queen, but that is probably not very much help to be honest!

With respect to ‘regulatory’ prosecutions, I am not convinced that this justifies leaving the English system as it is. The Lord Advocate tends to suffice in this regard in Scotland as master of the instance.

As for the CPS’s failings, well...

I made the point that the judiciary is independent of (as in not controlled by) the government. That should not be read to mean that it is flawless. However, for the purposes of discussing the use of prosecutions by TOCs we are really talking about magistrates for the most part.

True. Most are alright, although not the best on procedural matters a lot of the time.

In terms of horror shows, I’m not sure whether I’ve encountered worse from district judges or lay magistrates!

 

[Llanigraham]

I can see no case whatsoever for the railway or any other organisation than the CPS to be able to bring prosecutions in England. In the railway case it is simply abused as a form of extortion (because people fear Court, even if they need not) in cases that are at best vexatious.

The problem with that is the number of these private prosecutions that are made, whether by railway companies or other statutory bodies. If you remove their ability to take a prosecution and transfer that to the CPS will take hundreds of extra Civil Servants. Is that what you want?

I really think that too many people here who have no concept of all the bodies that take their own prosecutions, and are fixated on just one of them. Before you propose changes you really have to look at the wider picture. That you are NOT doing.

 

[Llanigraham]

In terms of horror shows, I’m not sure whether I’ve encountered worse from district judges or lay magistrates!

Atleast the Magistrates have a Clerk who should be pointing them the right way!

Story:
At one Court we presented at it was always better to get our cases heard in the mornings. It was well known that the Clerk liked a liquid lunch and sometimes had to be woaken up during a boring case in the afternnon.

 

[ainsworth74]

The problem with that is the number of these private prosecutions that are made, whether by railway companies or other statutory bodies. If you remove their ability to take a prosecution and transfer that to the CPS will take hundreds of extra Civil Servants. Is that what you want?

I really think that too many people here who have no concept of all the bodies that take their own prosecutions, and are fixated on just one of them. Before you propose changes you really have to look at the wider picture. That you are NOT doing.

In which case, how does Scotland survive?

 

[Llanigraham]

In which case, how does Scotland survive?

Because Scotland has a slightly different legal system and isn't as big as England and Wales, so correspondingly has less cases.

 

[tspaul26]

Atleast the Magistrates have a Clerk who should be pointing them the right way!

Story:
At one Court we presented at it was always better to get our cases heard in the mornings. It was well known that the Clerk liked a liquid lunch and sometimes had to be woaken up during a boring case in the afternnon.

Some clerks I have encountered might be improved by a liquid lunch! Some are worse than the DJs.

In which case, how does Scotland survive?

I don’t think it would be feasible to simply end private instance of prosecution in England overnight. It must be borne in mind that the Lord Advocate has been around for centuries!

That being said, a phased transition would in my view be workable whereby the categories of people able to commence proceedings shrink over time.

Law reform is not an easy business.

 

[Bletchleyite]

With regard to the railway, repealing the relevant clauses of RoRA and the Byelaws would do. There is no reason the railway should have more power than any other business to chase non-payment. Parking charges, for instance, have been decriminalised all over the UK, rail fares should be the same, they are similar magnitude and are avoided/evaded/forgotten in a very similar way.

 

[ainsworth74]

Because Scotland has a slightly different legal system and isn't as big as England and Wales, so correspondingly has less cases.

Indeed but that doesn't mean we can't change our own legal system and I'm not sure that the size is really a good argument against keeping the status quo. You could justify keeping a lot of things on that basis!

I don’t think it would be feasible to simply end private instance of prosecution in England overnight. It must be borne in mind that the Lord Advocate has been around for centuries!

That being said, a phased transition would in my view be workable whereby the categories of people able to commence proceedings shrink over time.

Law reform is not an easy business.

Oh I quite agree! Doing so overnight would be disastrous as @Llanigraham has been suggesting considering the large number of different organisations that currently bring such actions and probably need to either still be able to do so themselves or have some replacement mechanism (without collapsing the CPS) to allow such actions to continue. But it certainly strikes me that looking at reforming and reducing the range of organisations that can bring about private prosecutions would be a good place to start.

 

[Tetchytyke]

So British Gas "exort" money when they prosecute someone for say by-passing their gas meter?

I am not sure what relevance a deliberate (and dangerous!) act of serious fraud has to a discussion about railway prosecutions? British Gas do not, to my knowledge, prosecute people for under paying their leccy bill by four quid?

Funny you mention water companies. They can't even disconnect your supply if you don't pay them. Again I'm struggling to see the relevance to a discussion about TIL?

No, any prosecution is based on the facts presented as evidence, in line with the Legislation being used for that prosecution, be that railway or any thing else. They are not opinions.

"We think you have committed a criminal offence, pay us £300 or we'll prosecute you" is an opinion followed by a threat. It is not a fact.

Can I suggest that it might be worth your while, once C19 has eased, in spending some time in the public gallery at some Magistrate Courts and getting some experience of them.

That suggests that you have little experience of the Magistrate Courts.

It's ok, I only spent the first two years of my career working a defence solicitor's clerk, assisting Counsel at Crown Court. If we want to play top trumps.

I'm being slightly self-deprecating to make my point. I know fine well how the Courts work. My point is that most people do not, and will be cowed by threats of prosecution.

Is DVLA a "charlatan"?

DVLA will only prosecute where a vehicle has been found on a public road without tax by one of their inspectors, and even then will usually only do it where there's evidence of fraud (e.g. declaring a car SORN then leaving it on a road). They don't send prosecution notices out to people who have merely forgotten to renew their tax by a few days.

Compare that attitude to TIL...

You didn't mention them, but Capita (TV Licensing) are also shysters, for the same reasons TIL are.

The problem with that is the number of these private prosecutions that are made, whether by railway companies or other statutory bodies. If you remove their ability to take a prosecution and transfer that to the CPS will take hundreds of extra Civil Servants. Is that what you want?

For most statutory bodies, it actually wouldn't make any difference to staff numbers. The Environment Agency prosecutors, for instance, would simply transfer employment to the CPS.

In some cases, such as with the RSPCA (who have a very problematic attitude to Counsel who dare to specialise in defending their cases, going so far as to attempt to get them struck off), I would much prefer for them to lose their right to conduct prosecutions.

The issue with the railways remains that it is a commercial enterprise using criminal law to enforce payment of a civil charge. TIL are a commercial company specifically set up by an ex BR manager to profiteer from alleged failures to pay another commercial company for a service. Conflating this with the Environment Agency's power to prosecute a flytipper is disingenuous at best. Tesco don't prosecute their own shoplifters, so why are the railways any different?

 

[Llanigraham]

Indeed but that doesn't mean we can't change our own legal system and I'm not sure that the size is really a good argument against keeping the status quo. You could justify keeping a lot of things on that basis!


Oh I quite agree! Doing so overnight would be disastrous as @Llanigraham has been suggesting considering the large number of different organisations that currently bring such actions and probably need to either still be able to do so themselves or have some replacement mechanism (without collapsing the CPS) to allow such actions to continue. But it certainly strikes me that looking at reforming and reducing the range of organisations that can bring about private prosecutions would be a good place to start.

Agreed, the system could be changed, and possibly does need changing, but that change would be complicated and would affect numerous bodies. The problem would be getting all those bodies in agreement.

 

[Tetchytyke]

In terms of horror shows, I’m not sure whether I’ve encountered worse from district judges or lay magistrates!

The DJs tend to be worse in my experience. And some of the County Court judges I've seen make both DJs and Magistrates look positively sane.

At a push I would concede for the Government to be able to set up a statutory Railway Prosecutions Agency tasked with doing it properly, however I really see no need.

I don't think that's needed.

As you say, if there's a clear case of serious fraud (e.g. that doughnutting banker from a couple of years ago), the BTP and CPS can do it.

For everything else, it should be a civil matter, just as failing to pay a private parking ticket is.

In my view, the former is unacceptable and oppressive. The latter - which I have undertaken for clients in a number of matters - is problematical as the prosecution is not truly motivated by the public interest, but rather with a view to private gain.

Interesting, thank you for your thoughts.

I think it's important to differentiate between statutory bodies (e.g. the Environment Agency, Serious Fraud Office, HSE) and private bodies (as you say, the likes of the RSPCA, also the TOCs and TV Licensing).

It's the latter sentence, that I've bolded, that is why I'm so uncomfortable with the likes of TIL. I think the prevalence of out-of-court settlements for ticketing issues suggests that the prosecution (or more specifically, the threat of prosecution) is being used simply as a form of commercial debt recovery. There are no public interest considerations.

Indeed the example of the doughnutting banker, who was able to settle out-of-court despite a serious and long-running fraud, shows where their priorities lie.

 

[Taunton]

Prosecution decisions should never be taken by anyone who stands to make a financial advantage out of it, including by offering "pay me this money now or I'll take you to court and your world will fall in". I am surprised that some of the railway cases have not ended up with the prosecuting organisation themselves being in court for Demanding Money with Menaces, a criminal case prosecuted by the CPS. One wonders if the CPS may have become too cosy with TIL etc.

The origins of the law are back when tickets were obtained by telling a railway-employed clerk your journey, checked when you entered, checked while travelling, and checked/collected on exit. Anyone who managed to evade payment through all this had to be pretty much up for it, and that was surely in the minds of those who framed the law. Over time, the railway has then taken advantage of what is on the statute book to save money by eliminating various steps, letting the traveller do it themselves, having no standards so the ticket machine approach etc is allowed to vary from station to station, have all sorts of marketing offers and catches you are expected to negotiate, but then dropping right back to the law if they find something different to what they want.

It's as if the person in front of you in the supermarket, who presents their various coupons etc to the cashier, has them scrutinised by the cashier and is told "Ah, this one's out of date. You have tried to defraud us. Here comes the legal officer. Pay them £100 now or they will take you to court".

 

[35B]

This is my opinion as well. In Scotland it is very difficult to bring one to the extent that it is de-facto banned. ScotRail seems to manage to cope, by having adequate staffing and barriers to ensure that people are made to purchase a ticket. And they can always pursue people in the civil courts for non-payment if they wish, just like any other private business can.

I can see no case whatsoever for the railway or any other organisation than the CPS to be able to bring prosecutions in England. In the railway case it is simply abused as a form of extortion (because people fear Court, even if they need not) in cases that are at best vexatious.

At a push I would concede for the Government to be able to set up a statutory Railway Prosecutions Agency tasked with doing it properly, however I really see no need.

Obviously cases of actual fraud (e.g. falsification) could be prosecuted, as they would be if committed against anyone else, by the CPS, as these cases would be in the public interest.

For the practical purposes of railway fares offences, I would be entirely happy with the idea that the power to prosecute by the operator is removed. However, extending that to a state monopoly on who may bring prosecutions also worries me. I am not privy to any more detail than was reported generally, but the decision of the Scottish authorities to prevent the bringing of a private prosecution against Harry Clarke (the Glasgow bin lorry crash that killed 6 and injured 15) left a nasty sense of the Scottish authorities seeking to protect their own rather than allow the courts to act.

 

[Jonny]

So how would the likes of BT, the power companies, local Governemt, Governent Departments, etc take a prosecution?
Are you proposing a huge increase in the manpower at the CPS?

They could obtain relief through the civil system - fewer prosecutions should result. Only the most egregious cases should be prosecuted. Local authorities cannot be trusted, quite frankly, as they are often making the rules and enforcing those rules themselves.

 

[Jonny]

I wonder if I might put in my tuppence worth?

By way of background, I should explain that I am a solicitor qualified in both England and Scotland, have worked for the Procurator Fiscal and have experience in both the civil and criminal sides of the Magistrates’ Courts.

It is my experience that private prosecutions in England generally fall in one or other of two practical categories: (FIRST) ‘political’ prosecutions where the object of the proceedings is to advance some other goal or lobby group interest, such as the RSPCA; (SECOND) prosecutions by commercial parties where there is some perceived procedural benefit (e.g. greater chance of recovering costs, obtaining a trial diet more speedily, applying pressure to the defender).

In my view, the former is unacceptable and oppressive. The latter - which I have undertaken for clients in a number of matters - is problematical as the prosecution is not truly motivated by the public interest, but rather with a view to private gain.

Overall, it is my firm view that the system of private prosecution in England should be reformed along the lines pertaining in Scotland whereby before a private prosecutor may act against the accused he must first obtain a bill of criminal letters from the High Court of Justiciary. In practice, this would be likely to prevent almost all TOC prosecutions for fares offences.

Finally, I note that a number of comments have been made regarding the independence of the judiciary as a potential safeguard. I may confess that I have on many occasions encountered English judges who, shall we say, left much to be desired, especially in summary criminal causes. I do not rate this as an effective or adequate protective provision.

Thinking of the Lobby Group-type prosecutions, the current Prime Minister was on the receiving end of one recently (before he became Prime Minister IIRC), so this might gain some currency.

 

[tspaul26]

For the practical purposes of railway fares offences, I would be entirely happy with the idea that the power to prosecute by the operator is removed. However, extending that to a state monopoly on who may bring prosecutions also worries me. I am not privy to any more detail than was reported generally, but the decision of the Scottish authorities to prevent the bringing of a private prosecution against Harry Clarke (the Glasgow bin lorry crash that killed 6 and injured 15) left a nasty sense of the Scottish authorities seeking to protect their own rather than allow the courts to act.

It was the High Court that declined to grant letters so the courts did act and concluded - in accordance with the relevant law - that it was not appropriate or in the public interest for a prosecution to be led in that case.

 

[tspaul26]

Thinking of the Lobby Group-type prosecutions, the current Prime Minister was on the receiving end of one recently (before he became Prime Minister IIRC), so this might gain some currency.

The Prime Minister had sufficient wherewithal and resources to bring judicial review proceedings against the issue of the originating summons which was held to be unlawful and a nullity. This is not a realistic option for most subject to private prosecution.

There is a new attempt at the moment to bring a private prosecution against Dominic Cummings. An information has been laid, but no summons has yet been issued. I pity the magistrate who has to deal with that hot potato!

 

[Llanigraham]

They could obtain relief through the civil system - fewer prosecutions should result. Only the most egregious cases should be prosecuted. Local authorities cannot be trusted, quite frankly, as they are often making the rules and enforcing those rules themselves.

So you suggest that, say, the DWP take a civil prosecution for non-payment of Class 2 national Insurance? Or the Tax Office for non-payment of VAT?
And as for your comments about Local Authorities,....................................!!

 

[Jonny]

So you suggest that, say, the DWP take a civil prosecution for non-payment of Class 2 national Insurance? Or the Tax Office for non-payment of VAT?
And as for your comments about Local Authorities,....................................!!

Actually, their investigative functions should be transferred to the Police. If it is that bad, then the Police would get involved. Local Councils in particular need to be massively pruned back!

 

[Bletchleyite]

So you suggest that, say, the DWP take a civil prosecution for non-payment of Class 2 national Insurance? Or the Tax Office for non-payment of VAT?
And as for your comments about Local Authorities,....................................!!

The CPS (and only the CPS) should pursue prosecutions. So those staff responsible for conducting them should simply move to the CPS in these cases, but be under the CPS's control.

 

[35B]

It was the High Court that declined to grant letters so the courts did act and concluded - in accordance with the relevant law - that it was not appropriate or in the public interest for a prosecution to be led in that case.

Correction noted - thanks. However, my understanding of the reporting of that case suggests a problem with the effective monopoly of the Crown in terms of running prosecutions, and a disinclination to accept challenge. Creation of effective monopoly powers makes me very uneasy.