The company's prosecutors must also adhere to CPS guidance and 'the code' whilst pursuing such cases.
I hesitate to disagree, and in fact I will agree up to a point, that a prosecutor acting for a Railway Company would, as a matter of good practice and of policy, act in accordance with CPS guidance.
However, my discussion above was in the more general form of a contrast between policy in public and private prosecutions; and in that I believe that I am correct that there is no binding requirement on an individual, a corporate body, an agency or an unincorporated body who brings forward a prosecution (a private prosecutor) to adopt the evidential and public interest tests of the CPS. I also believe that I am correct in stating that there is no requirement for a 'public interest test' of any form to be applied to any private prosecution. I do understand that some law firms and practitioners will state otherwise (and they might have good business reasons for assessing their risk), but ultimately it will fall to the Court to assess the matter (whether on receiving an information, during case management or during trial), and anyway, any decision to refuse at any of those stages would be open to Judicial Review.
There have been private prosecutions where the CPS have already deemed that the matter had failed to meet adequate 'public interest'.
In 2009 there were calls to change this position (following the arrest warrant issued against Israel's foreign minister, Livni), but all that happened was that special conditions concerning offences by foreigners on foreign soil would have to be approved by the DPP.
The 'public interest test' applied by the CPS may indeed be applied by the CPS in considering whether or not to 'take over' and terminate a private prosecution, but it would be for them to do that, not the prosecutor, and only if the matter comes to their attention. There is no automatic process of notifying the CPS of a private prosecution (and with the widely criticised cut-backs on CPS resources leading to regular accusations by the Courts of serious failures , based on their current workload of cases generated by the Police, I don't think we should expect any CPS attention to be turned towards private prosecutions in practice. I think the CPS under-resourcing situation will reach crisis point quite soon).
I quote from a House of Commons briefing paper on the subject of Private Prosecutions by Sally Almandras:
House of Commons Briefing - Private Prosecutions - 2010
The CPS may also decide to discontinue a private prosecution where either the evidential sufficiency stage or the public interest stage of the “Full Code Test”, which sets out the conditions that should be satisfied before a public prosecution is instituted, is not met. However, the CPS does not apply the Test in the same way as it does when it is deciding whether to institute a public prosecution:
[Laws LJ in R v Director of Public Prosecutions, ex parte Duckenfield and another; R v South Yorkshire Police Authority and another, ex parte Chief Constable of the South Yorkshire Police and others, [2000] 1 WLR 55]
...it could not be right for the DPP to apply across the board the same tests, in particular the 'reasonable prospect of conviction' test ... in considering whether to take over and discontinue a private prosecution as the code enjoins crown prosecutors to follow in deciding whether to institute or proceed with a prosecution themselves; the consequence would be that the DPP would stop a private prosecution merely on the ground that the case is not one which he would himself proceed with. But that, in my judgment, would amount to an emasculation of s 6(1) * and itself be an unlawful policy; ... The very premise of s 6(1) must be that some cases will go to trial which the DPP himself chooses not to prosecute.
* 1985 Prosecution of Offences Act
Later in that same judgement, Laws LJ remarks : "
The private prosecutor is very likely to take a different view as to where the public interest lies than does the DPP, and s.6(l), I think, implies that he is entitled to do so. The approach urged by Mr Harrison would in effect require the pnvate 45 prosecutor to persuade the DPP that his view of the public interest is plainly right. I consider it strongly arguable that that would place an illegitimate constraint upon the right of private prosecution"
All parties though, should be working consistently within the Criminal Procedure Rules (CPR) and Practice Directions
Of course I fully agree with you that there is an element of public interest in that a fine following conviction acrues to the Treasury.
I'm reflecting on the difficulties that might arise if there
WAS a requirement for all private prosecutions to meet the CPS's 'public interest test'. I struggle in cases -
- where there is a challenge following an application of a Police 'neither admit nor deny' policy (see the Pritchard enquiry into covert Police surveillance which has just enlisted Ken Livingstone as a key witness); or
- where a prosecution of murder or manslaughter against a close relative of a terminally ill patient who requested a physician's assistance in dying (where, in the context of assisted dying, the CPS has said that there is a 'public interest' in all murders); or
- where the offence is Malicious Prosecution (where the same CPS might be asked to apply the same test to both the original prosecution, and then, to the counter claim of malicious prosecution of the same matter); or
- where the offence is a tort of nuisance or negigence with negligible 'public interest' and negligible damages, but great personal impact on the claimant which an injunction could achieve.
I probably should study these examples further before trying to make a point out of them, so please only consider this list as grounds for further reflection and not for argument.
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If the English and Welsh private prosecutions are so good, why isn't the same law brought in, in Scotland?
The 'same law' would be a Scottish variant of the 1985
Prosecution of Offences Act, but as I explained above, that is not strictly necessary as it would only regularise statute with Common Law - the possibility for a citizen to bring about a private prosecution has been possible in Common Law for a thousand years. While there is no real need for a statute, the difficulty in Scotland is the resistance of the Courts to enter territory they don't want to enter. I witnessed a prime example a few weeks ago when the Lord Advocate was defending an application for a Judicial Review. He didn't. He had to repeat himself four times : "if the Court accepts the Claimant's petition then the Lord Advocate will offer no resistance". The Lords seemed to be pretending this wasn't happeneing to them : "What do you mean by that?". And he just repeated his guarantee of no resistance : the state's acceptance that the matter against the state should be heard, while it was clear that the Lords were looking to him for reasons to refuse the challenge in the petition. Reasons which were not going to be forthcoming! (Isn't it ironic that the adversarial structure of Courts, the ultimate decision makers, sometimes leads them to trying so very hard to avoid making a decision when the counter-arguments are deliberately not being presented to them? - what we call in England & Wales : offering no evidence)
I can see why private prosecutions are useful. What if Hillsborough had occurred in Scotland?
I would expect that an opening would be found in a coroner's report or a court's judgement to mount a Judicial Review, and if that was to be challengehd, then it would go to the Supreme Court (until that last leg became more difficult for Scottish apellants when the Supreme Court raised te bar for Scottish Appeals last year, to coincide with the passing of the 2014
Victims and Witnesses (Scotland) Act which I and
najaB have referred to above).
