I am much better informed of course by Joshua’s piece(s) than hitherto and by the so seasoned earlier contributors. Tempting though it may be to have the Single Justices in this context embarking upon public interest considerations, I am troubled by that tiptoeing into a prosecutor’s domain.
While Sir Theobold was correct at the time, things have obviously moved on. The right to bring a private prosecution has long been argued a constitutional safeguard. While that may be theoretically true (although the power of the DPP to take over any prosecution and the A-G the power to issue a nolle prosequi counts against that), there should be a difference between an individual and a company (notwithstanding the corporate rule about a company being a legal person).
Of course, it comes down to money. If the government said that companies could not prosecute and it would need to go via the CPS, then the already-stretched CPS would need a lot more money. Which the government would be reluctant to provide. A binding code will be OK so long it tackles the key areas of the CCP. Personally, I would say that companies need to follow the CCP and put greater scrutiny on an application for a summons from citizens.
On the SJP, this is always difficult, partly because the media (not including you, obviously) cannot differentiate between mitigation and the decision to prosecute. As you say, some of the mitigation calls into question whether a prosecution was in the public interest. However, there are lots of (normal) prosecutions where there is some doubt as to whether the public interest test is met. It has never, to the best of my knowledge, been the role of the courts to determine whether a prosecution is in the public interest (save on a judicial review as to whether the Code is met, which is certainly not one for lay justices!). Prosecutors do not have a role in mitigation, that is rightly a matter for the courts. However, the difficulty with most of the SJP offences is that judicial discretion over most sentences has gone. So, for example, speeding accounts for a considerable amount of the SJP procedure. But, if you look at the Sentencing Guideline there is no real discretion. The speed determines the band of fine, and the income of the offender determines the fine (although most don't say their means, so the 'deemed amount' is taken). Where does mitigation sit there? TV Licencing is the same. If you look at the guideline, it is a Band A or a Band B fine depending on the aggregation, with the vast majority being Band A. There isn't any real way to take account of mitigation in the way that you would with a sentence that is more vague such as ABH.
I can't see how getting prosecutors to look at mitigation would work. The numbers are vast, and it probably wouldn't be legally-qualified prosecutors who would look at it, it would be caseworkers. Guidelines would then be produced, and it would become as tick-box as anything else.
A radical solution would be to say that SJPs have four express options open to them:
(1) Convict
(2) Acquit
(3) Discharge the matter as not in the public interest
(4) Refuse prosecution costs where they think it is not in the public interest.
#3 takes the courts (particularly lay mags) into territory they have stepped. #4 is fine in one regard, but doesn't help the person who now has a formal criminal conviction.
Another argument is to abolish SJP. However, most of these offences do not realistically require three lay magistrates or a DJ to deal with them, so the underlying premise is not bad. While much attention is paid to delays in the Crown Court, the delays in the Mags is significant too. Pouring all of the SJP cases into the normal routine work of the Mags would really delay things.
Thank you for these extremely well informed suggestions. I hope the Ministry of Justice is listening.
Another well-informed reader writes to me about private prosecutions for fraud:
"The CPS hardly ever take these cases these over because they don't have the financial resources.
"There is always a concern that because the prosecutor is also the client the lawyers are not giving truly independent advice. However, that seems to be far less of a concern than it was.
"One area of reform could be foreign companies bringing such prosecutions as, if there are costs orders against them, they can't be enforced if they have no assets here. In my view, they should have to provide security for costs as they would if they brought a civil claim.
"In general, these prosecutions fill a gap in the system as without them some criminals would go unpunished."
I think it may perhaps be worth observing that rail fare offences can be prosecuted via SJP where the offence is one in the Railway Bye-laws – this will typically be the strict liability offences in Bye-law 18. It was the attempt to prosecute offences under section 5 (1) of the Regulation of Railways Act 1889 under SJP that was illegal, because the train operating companies are not relevant prosecutors for that matter.
See Article 6 of the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016 and particularly the definition of "railway offence" therein.
I think Joshua has raised some very interesting issues in this post
I am much better informed of course by Joshua’s piece(s) than hitherto and by the so seasoned earlier contributors. Tempting though it may be to have the Single Justices in this context embarking upon public interest considerations, I am troubled by that tiptoeing into a prosecutor’s domain.
While Sir Theobold was correct at the time, things have obviously moved on. The right to bring a private prosecution has long been argued a constitutional safeguard. While that may be theoretically true (although the power of the DPP to take over any prosecution and the A-G the power to issue a nolle prosequi counts against that), there should be a difference between an individual and a company (notwithstanding the corporate rule about a company being a legal person).
Of course, it comes down to money. If the government said that companies could not prosecute and it would need to go via the CPS, then the already-stretched CPS would need a lot more money. Which the government would be reluctant to provide. A binding code will be OK so long it tackles the key areas of the CCP. Personally, I would say that companies need to follow the CCP and put greater scrutiny on an application for a summons from citizens.
On the SJP, this is always difficult, partly because the media (not including you, obviously) cannot differentiate between mitigation and the decision to prosecute. As you say, some of the mitigation calls into question whether a prosecution was in the public interest. However, there are lots of (normal) prosecutions where there is some doubt as to whether the public interest test is met. It has never, to the best of my knowledge, been the role of the courts to determine whether a prosecution is in the public interest (save on a judicial review as to whether the Code is met, which is certainly not one for lay justices!). Prosecutors do not have a role in mitigation, that is rightly a matter for the courts. However, the difficulty with most of the SJP offences is that judicial discretion over most sentences has gone. So, for example, speeding accounts for a considerable amount of the SJP procedure. But, if you look at the Sentencing Guideline there is no real discretion. The speed determines the band of fine, and the income of the offender determines the fine (although most don't say their means, so the 'deemed amount' is taken). Where does mitigation sit there? TV Licencing is the same. If you look at the guideline, it is a Band A or a Band B fine depending on the aggregation, with the vast majority being Band A. There isn't any real way to take account of mitigation in the way that you would with a sentence that is more vague such as ABH.
I can't see how getting prosecutors to look at mitigation would work. The numbers are vast, and it probably wouldn't be legally-qualified prosecutors who would look at it, it would be caseworkers. Guidelines would then be produced, and it would become as tick-box as anything else.
A radical solution would be to say that SJPs have four express options open to them:
(1) Convict
(2) Acquit
(3) Discharge the matter as not in the public interest
(4) Refuse prosecution costs where they think it is not in the public interest.
#3 takes the courts (particularly lay mags) into territory they have stepped. #4 is fine in one regard, but doesn't help the person who now has a formal criminal conviction.
Another argument is to abolish SJP. However, most of these offences do not realistically require three lay magistrates or a DJ to deal with them, so the underlying premise is not bad. While much attention is paid to delays in the Crown Court, the delays in the Mags is significant too. Pouring all of the SJP cases into the normal routine work of the Mags would really delay things.
Thank you for these extremely well informed suggestions. I hope the Ministry of Justice is listening.
Another well-informed reader writes to me about private prosecutions for fraud:
"The CPS hardly ever take these cases these over because they don't have the financial resources.
"There is always a concern that because the prosecutor is also the client the lawyers are not giving truly independent advice. However, that seems to be far less of a concern than it was.
"One area of reform could be foreign companies bringing such prosecutions as, if there are costs orders against them, they can't be enforced if they have no assets here. In my view, they should have to provide security for costs as they would if they brought a civil claim.
"In general, these prosecutions fill a gap in the system as without them some criminals would go unpunished."
I think it may perhaps be worth observing that rail fare offences can be prosecuted via SJP where the offence is one in the Railway Bye-laws – this will typically be the strict liability offences in Bye-law 18. It was the attempt to prosecute offences under section 5 (1) of the Regulation of Railways Act 1889 under SJP that was illegal, because the train operating companies are not relevant prosecutors for that matter.
See Article 6 of the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016 and particularly the definition of "railway offence" therein.
That's right. I explained it fully — I hope accurately — in the piece I linked to last August.