Private prosecution
A private prosecution is a criminal proceeding initiated by an individual private citizen or private organisation instead of by a public prosecutor who represents the state. Private prosecutions are allowed in many jurisdictions under common law, but have become less frequent in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals who retain barristers.
Australia
A private criminal prosecution for contempt of court can be commenced against a party in Australia in the Federal Circuit Court, the family court or the supreme court of a state or territory.Western Australia
In the Family Court of Western Australia, an online form exists to commence such proceedings which can be downloaded, completed and filed.In the Supreme Court of Western Australia, either an originating summons or originating motion must be filed specifying the alleged contempt, and personally served on the alleged contemptor before a hearing before a judge sitting in chambers unless the court orders otherwise.
If the alleged contempt occurred in relation to any specific case, the forms are required to be filed under the heading of the parties for that specific case; or if it is not alleged to have been committed with reference to a particular proceeding, shall be entitled "The State of Western Australia against" the contemnor ex parte the applicant.
New South Wales
In New South Wales private prosecutions are legal but very rare. In 2022, gambling lobby group ClubsNSW brought a private prosecution for contempt of court against comedian and journalist Friendlyjordies and whistleblower Troy Stolz. This prosecution was also subject to an interim suppression order, making it secret temporarily.Belize
Belize is another jurisdiction where private prosecutions can be undertaken. In 2014, the private prosecution of politician Elvin Penner by a grass-roots citizens organization over issuance of fraudulent passports was unsuccessful because the defense succeeded in arguing that the private prosecutor did not have the power to subpoena police records on the case. An attorney for COLA indicated that the government did not wish a prosecution of Penner to be undertaken, and acted to block its success.Canada
Canada is a federation, and has both federal and provincial offences that can be privately prosecuted. Federally, there are criminal and statutory offences, and provincially there are provincial and municipal non-criminal offences. Under Canada's constitution, all criminal offences in Canada are under federal jurisdiction, and the Government of Canada can provide funds to the private prosecutors to carry out this work.Leaders of the Winnipeg General Strike of 1919 were tried on charges of seditious conspiracy by state-funded private prosecutors. The funds were disbursed from the Government of Canada's approved expenditures, and are evidenced in the Auditor General's reports of 1921 and 1922.
A committee chaired by Mr. Justice Allen Linden of the Law Reform Commission of Canada produced a Working Paper on Private Prosecutions in 1986. Peter T. Burns, a law professor at the University of British Columbia's Peter A. Allard School of Law, wrote a paper in 1975 for the McGill Law Journal entitled "Private Prosecutions in Canada: The Law and a Proposal for Change"; he was later the Principal Consultant for the Law Reform Commission. Swaigen, Koehl and Hatt in 2013 summarised efforts to prosecute privately torts in the environmental domain.
Criminal offence procedure for private charges
Very basically, a citizen or organisation approaches a justice of the peace to present evidence on each element of the alleged offence. The justice then sets up a hearing with a judge to determine whether there is evidence on each element of the offence, and if approved, and if the Crown does not intervene and terminate the charge then it is allowed to proceed to and go through court via the criminal procedure.Provincial offence procedure for private prosecution
Each province in Canada deals with private prosecutions of provincial offences in their own way.Ontario
In Ontario, the procedure for commencing a private prosecution for a provincial offence is governed by Part III of the Provincial Offences Act, ss. 23 of which provides that, "Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information." The laying of an information as described in Part III of the Act allows anyone to commence a prosecution for a provincial offence, whereas Parts I and II of the Act may only be used by a provincial offences officer.British Columbia
In British Columbia, the guidelines for private prosecutions are detailed in the Crown Counsel Policy Manual by the BC Prosecution Service. The policy, designated as PRI 1, has been in effect since March 1, 2018. According to this policy, the BC Prosecution Service generally does not endorse private prosecutions. When such a prosecution is initiated, it is common practice for the Crown Counsel to either assume responsibility for the prosecution or to direct a stay of proceedings subsequent to an evaluation known as a charge assessment decision. The said assessment also pertains to Informations presented under sections 810 and 810.1 of the Criminal Code.When the Crown Counsel is notified of a private Information or a 507.1 Criminal Code private prosecution process hearing, there is a procedural sequence to follow. It entails a review of the Information and related documents, an evaluation against the charge assessment criteria, and consultations with senior legal personnel about the prospective charge. Post this evaluation, a decision is made about whether the Crown Counsel will lead the prosecution or if proceedings will be stayed.
If a private Information is officially submitted, the Crown Counsel can, at any juncture, direct a stay of proceedings, especially if the charge does not meet the assessment criteria. Should a process be sanctioned after a 507.1 hearing, it's imperative to acquire a transcript of said hearing. In situations warranting further inquiry, the Crown Counsel may direct the pertinent agencies to delve deeper. Subsequent to these investigations, a reassessment is done, followed by consultations on the next course of action.
Furthermore, the Crown Counsel assesses for potential conflicts of interest or issues of confidentiality concerning the accused in the private Information. If deemed necessary, outside legal counsel or a special prosecutor might be appointed to oversee the case.
France
There are three types of criminal offences in France:- Crimes, punishable by up to imprisonment for life;
- Délits, punishable by up to 10 years imprisonment ;
- Contraventions, punishable by criminal fine up to €.
The court sits with either one or three judges, without jury.
In court, the private prosecutor sits alongside the public prosecutor as an accessory, and is merely called the "civil plaintiff", as French criminal courts also rule on civil delictual claims during the same proceeding. Trials take place in this way even when the prosecution was initiated by the public prosecution office.
The plaintiff and the accused are both represented by normal attorneys, sitting at the ground-level of the courtroom, while the public prosecutor, considered by French law as a magistrate, sits on a platform as the court, although he does not participate in their deliberations.
The public prosecutor gives the court his opinion about the case after the plaintiff and before the defense. Eventually, the defendant may be convicted even if the public prosecutor requested acquittal.
In France, appeal courts retry both facts and law. The accused may appeal a conviction and sentence, but the plaintiff can only appeal damages. He cannot appeal an acquittal or a more lenient criminal punishment, contrary to the public prosecutor, who can do this even if the prosecution was private.
For crimes or when the plaintiff has insufficient evidence, he may refer to an investigating judge who will investigate the case, and refer it to the trial court if he discovers sufficient evidence of guilt. The investigating judge is independent from the public prosecutor's office, and may refer the case to the trial court even if the public prosecutor requested non-suit.
Indeed, French law allows some associations to instigate private prosecutions, but only for some few offences such as racist speech. In 2013, this possibility has been added for some white-collar crimes.
If the defendant is convicted, the criminal court can sentence him to pay damages to the plaintiff for the criminal offence, and to reimburse his legal costs, in addition to the criminal punishment. But if the private prosecution or the referral to the investigating judge is regarded as abusive, the plaintiff may be sentenced to pay damages to the accused and a civil fine to the state.
Ireland
Private prosecutions remain possible in the Republic of Ireland, though only at the District Court level where less serious offences are heard before a judge only.The continuing existence of the right to private prosecution was confirmed in 2013 in the decision of the case Kelly & anor -v- Ryan.
New Zealand
Private prosecutions remain legal in New Zealand.Philippines
Private prosecutors in the Philippines are private attorneys that work with police and public prosecutors to help bring criminal cases. They often work to get the location of a trial moved to a more neutral court, outside the influence of local power brokers, and to prepare the necessary legal petitions and other documents. They also help to look after the victim's family and keep media and public attention focused on the case.Private prosecutors can be involved in cases in front of the national anti-corruption court the Sandiganbayan.