This week ‘private prosecutions’ have made the news, following the announcement by Marcus J Ball that, after a couple of years of fund raising and investigations, Boris Johnson was to the one and only target of his campaign to bring the ‘liars of Brexit’ to justice. I have long held reservations about this particular private prosecution and the way that it was being conducted. It seems that thus far the cost of just the investigative stage has reached £200,000 and Mr Ball anticipates the total cost to be around the £2m. All of course funded by the public through a crowd funding website. My own view is that this is absolutely ‘bonkers’.
Like many, I am no fan of Mr Johnson but my reservations turned to head in hands, then to head on desk on watching Mr Ball’s video message to Boris. Apart from the hammy presentation, this is really not how a private prosecution should be conducted. I don’t know whether he ran this video past one of the many lawyers that he boasts of, I rather hope not.
If I am defending a client in criminal proceedings, I of course advise them and they take that advice or otherwise. I act on their instructions and present their case as best I can. However, with a private prosecution, the law requires that I don’t just follow my client’s instructions, I must adopt the mantle of a ‘minister or justice’ and that will often mean saying no to a client. It also means that before taking such a case I have to look at what motivates my client. If they are simply seeking revenge, then I won’t be taking their instructions. There needs to be objectivity, which seems sadly lacking in Mr Ball’s current enterprise.
It is under s.6(1) of the Prosecution of Offences Act 1985 that maintained the ability of the private individual or indeed company to privately prosecute but s.6(2) provides the power for the Director of Public Prosecutions to adopt such a prosecution and either proceed with it or discontinue the proceedings. If I had to guess the fate of this particular prosecution my money would be on the latter course of action. Even if the DPP chose not to adopt, I can see legal argument that the prosecution was an ‘abuse of process’ being very persuasive.
There is however a place for properly considered private prosecutions being brought before the courts, especially where there has been behaviour that is obviously criminal in nature but where the authorities have declined to act, most frequently due to a lack of public resources. In considering suitable cases for private prosecution, we apply the same tests as the Crown Prosecution Service. The first question is whether or not there is a realistic prospect of a conviction. If there is, the next question, is whether the prosecution is in the public interest. The public interest may of course not be the same as the interests of the person or body seeking to bring the case.
The Ball / Boris case has raised the public awareness of the ability to bring private prosecutions and that can only be positive.
If you need advice about bringing a private prosecution give Kent Criminal Law a call. As with all of our work we offer a free initial consultation and fixed fees, so rest assured that if we take your instructions, you won’t be facing a £2m bill. I can also guarantee that we won’t be recording Youtube videos to taunt the potential defendant or providing any other ammunition for the defence to present an abuse argument further down the road.