British supermodel Naomi Campbell has requested for strict measures to maintain privacy at The Hague, in the Netherlands, where she will testify at a war crimes trial over allegations that she had accepted a ‘blood diamond’. Campbell has retained Lord Macdonald, the former UK director of public prosecutions, to seek special protective measures normally granted [...]
Posts Tagged ‘director of public prosecutions’
Hacker mother appeals to Obama
July 31st, 2009 |
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The mother of a British computer hacker facing extradition to the US has appealed to President Barack Obama to intervene in the affair.
Janis Sharp spoke after her son, Gary McKinnon, who has Asperger’s Syndrome, lost a court bid to avoid extradition.
The US wants to try him for what it calls the biggest military computer hack ever, in 2001 and 2002, but he says he was seeking evidence on UFOs.
Ms Sharp said: "Please hear us, Obama. I know you would do the right thing."
A letter has been sent to the US president signed by 40 British MPs asking him to step in and "bring this shameful episode to an end".
Speaking outside the court Ms Sharp said President Obama should help those campaigning on her 43-year-old son’s behalf make the world "a more compassionate place".
"Obama wouldn’t have this. He doesn’t want the first guy extradited for computer misuse to be a guy with Asperger’s [Syndrome], a UFO guy.
"My predecessor has already sought and received clear assurances from the US that Mr McKinnon’s health and welfare needs would be met, should he be extradited"
Alan Johnson, Home Secretary
Reaction to decision Gary McKinnon profile"I’m just praying, please hear us, Obama, because I know you would do the right thing," she added.
Mr McKinnon admits hacking by accessing 97 government computers belonging to organisations such as the US Navy and Nasa, but denies it was malicious. He also denies the allegation he caused damage costing $800,000 (£487,000).
Whether or not he can appeal to the new UK Supreme Court – due to launch in October – will be decided later, Lord Justice Burnton said.
Glasgow-born Mr McKinnon had challenged refusals by the home secretary and the director of public prosecutions (DPP) to try him in the UK.
The home secretary insists he has no power to demand the trial take place in the UK.
The DPP refused to order a UK trial, saying the bulk of the evidence was located in the US and Mr McKinnon’s actions were directed against the US military infrastructure.
The court was also asked to rule on whether his Asperger’s Syndrome – a form of autism – meant he could not be extradited to the US.
Mr McKinnon’s lawyers argued extradition was "unnecessary, avoidable and disproportionate" and had not taken place in other cases.
Home Secretary Alan Johnson said: "Mr McKinnon is accused of serious crimes and the US has a lawful right to seek his extradition, as we do when we wish to prosecute people who break our laws.
"The court judgement has also made absolutely clear that the DPP’s decision not to prosecute in the UK was the right one.
"My predecessor has already sought and received clear assurances from the US that Mr McKinnon’s health and welfare needs would be met, should he be extradited."
Mr McKinnon faces up to 70 years in prison if convicted in the US.
He has always insisted he was looking for classified documents on UFOs which he believed the US authorities had suppressed.
Ms Sharp said her son – who did not attend court on Friday – had been "naive enough to admit to computer misuse without having a lawyer and without one being present".
US-UK EXTRADITION TREATY- 2003 treaty, agreed in aftermath of 9/11 attacks
- Offence must be punishable by one year or more in jail in both countries
- US has to prove "reasonable suspicion" for extradition of a British citizen
- To extradite an American from the US, British must prove "probable cause"
- Since 2004, 56 people have been sent from the UK to the US for trial, and 26 for US to UK
- US courts have granted about 70% of UK extradition requests, while nearly 90% of US requests have been granted
She said she was "heartbroken" and feared for his health.
"He’s very ill, he’s got really bad chest pains, it’s affected him emotionally, mentally, every way, he’s terrified," she said.
In a statement, his lawyer Karen Todner, asked: "What does it take to make this government sit up and listen to the clear public view that Gary McKinnon should not be extradited
"The extradition treaty with America was brought in to facilitate the extradition of terrorists and it must be clear to anyone following this case that [he] is no terrorist."
She added that he was "clearly not equipped" to deal with the American penal system.
In February the Crown Prosecution Service refused to bring charges against Mr McKinnon in the UK, following a ruling by former Home Secretary Jacqui Smith to allow his extradition.
Mr McKinnon has already appealed unsuccessfully to the House of Lords and the European Court of Human Rights and his latest judicial reviews in the High Court are likely to be his last chance.
His lawyers say the authorities have not given proper consideration to his Asperger’s Syndrome, which could have "disastrous consequences" – including suicide – if he was to be extradited.
Asperger’s Syndrome sufferers commonly become obsessed with certain activities and interests and have a level of social naivety when it comes to evaluating the consequences of their actions. </p
This article is from the BBC News website. © British Broadcasting Corporation, The BBC is not responsible for the content of external internet sites.
Hacker loses extradition appeal
July 31st, 2009 |
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The long-running case of computer hacker Gary McKinnon could finally be settled later at the High Court.
Authorities in the US are seeking his extradition to face trial for breaking into American military computers.
Mr McKinnon admits hacking, but denies it was malicious or that he caused damage costing $800,000 (£550,000).
The 43-year-old, from north London, is challenging refusals by the home secretary and director of public prosecutions to try him in the UK.
Mr McKinnon faces up to 70 years in prison if he is convicted in the US of what prosecutors have called "the biggest military computer hack of all time".
In total, he accessed 97 government computers belonging to organisations including the US Navy and Nasa.
He has always insisted he was looking for classified documents on UFOs which he believed the US authorities had suppressed.
Asperger’s Syndrome
In February, the Crown Prosecution Service refused to bring charges against Mr McKinnon in the UK.
The decision followed a ruling last October by then Home Secretary Jacqui Smith to allow his extradition.
Mr McKinnon has already appealed unsuccessfully to the House of Lords and the European Court of Human Rights and his latest judicial reviews in the High Court are likely to be his last chance.
His lawyers say the authorities have not given proper consideration to his Asperger’s Syndrome, which could have "disastrous consequences," including suicide, if he was to be extradited.
They argue he is "eccentric" rather than malicious and should be tried on lesser charges in the UK to protect his mental health.
This article is from the BBC News website. © British Broadcasting Corporation, The BBC is not responsible for the content of external internet sites.
Bower awaits launch of tell-all book
July 24th, 2009 |
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• Journalist believes paper boss committed perjury
• Express chief’s statement suggests he won libel case
When the press baron Richard Desmond lost his libel battle with the author Tom Bower on Thursday, he did not just land himself with a legal bill for an estimated £1.25m.
His defeat also meant that Rough Trader, Bower’s tell-all biography of the Express newspapers chief – a book that Bower today described as “the most devastating story of a businessman I have ever written” – is likely to be in the shops before Christmas.
Speaking to the Guardian after a night of celebrations, Bower also revealed he is preparing a dossier to submit to the director of public prosecutions containing evidence that he alleges proves that Desmond committed perjury in the witness box on at least three instances during the nine-day trial.
Desmond’s solicitors, Schillings, robustly denied the allegations yesterday and maintained there was no evidence he had perjured himself.
After the verdict, Bower and his supporters went to the Fleet Street drinking den El Vino’s, and then to the Garrick club in Covent Garden. “When I walked into the Garrick the whole bar stood up and cheered,” said Bower.
Desmond, meanwhile, issued a curious statement which suggested he had won the case and was pleased to have “set the record straight”. On the Express website the statement was printed in full with no reference to his costly defeat; the court report in the paper made just passing mention of the verdict, concentrating instead on Desmond’s “satisfaction” and errors he still insisted Bower had made.
Bower, famed for his brutal portraits of the rich and famous, believes the Express proprietor brought the action in the hope of suppressing his warts-and-all biography. Bower finished a 220-page unauthorised biography of Desmond in 2005, which he promised today contained “really quite unbelievable facts” about how the 57-year-old owner of Express and Star newspapers came to acquire a fortune estimated by the Sunday Times at £950m.
It is an extraordinary and sleazy story, said Bower, which shows how “a man who rose from earning £1 a night looking after a cloakroom in a Tottenham pub became a billionaire”. Bower says he spoke to “100-plus” of what he described as Desmond’s “victims” and claims to have uncovered evidence of alleged mafia connections, fraud and mistreatment of women.
But the book was never published. In court last week, Bower’s barrister, Ronald Thwaites, QC, suggested that Desmond had appointed the renowned libel solicitors Carter Ruck to “put the frighteners” on the original publishers, Aurum.
But Bower said today that as soon as Desmond got wind of the book, he “disappeared” from public life and stopped appearing in OK! magazine (which he owns) and making PR appearances. As a result, Aurum told him Desmond was no longer a public figure and therefore no one would be interested in buying the book.
Bower said he has a meeting next week with HarperCollins, who published his controversial biography of Conrad Black, and who funded his legal defence against Desmond. He is “very hopeful” that Rough Trader, complete with a new chapter documenting the saga of the libel action, will be on sale by Christmas.
But Desmond’s defeat also bodes well for Bower’s next book The Squeeze: Oil Money and Greed in the 21st Century, which is due to be published in October.
Desmond’s solicitors, Schillings, according to Bower, also act for some of the key characters/case studies in the oil book, including former BP chief executive Lord Browne and oil traders Vitol.
Bower claims he has been sent legal letters from Schillings making representations for both Browne and Vitol.
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CPS not given key evidence in hacking case
July 20th, 2009 |
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Pressure on Scotland Yard as prosecutors say detectives did not give them a key email in News of the World phone-hacking case
Scotland Yard will come under fresh pressure today to reopen its inquiry into phone-hacking and the News of the World after prosecutors said they were never handed a document that appeared to implicate another of the paper’s senior staff.
The Crown Prosecution Service told the Guardian that detectives did not give them a key email naming the tabloid’s chief reporter, Neville Thurlbeck.
In the email, a junior News of the World reporter has copied a transcript of more than 30 messages hacked from the phones of the Professional Footballers’ Association chief executive, Gordon Taylor, and his legal adviser Jo Armstrong.
The email recorded that the transcript had been prepared “for Neville”.
The News of the World has consistently claimed that the hacking of voicemail by a private investigator involved only one rogue journalist, their royal reporter Clive Goodman, acting alone.
The CPS confirmed that the email was not “physically” provided to them as evidence to support the prosecution of Goodman and private investigator Glen Mulcaire.
Instead it formed part of a bundle of documentary evidence that was retained by the police. Prosecuting counsel would have seen it, but as it had no specific relevacne to the case, the wider significance of it would not have been obvious.
Keir Starmer, the director of public prosecutions, last week carried out an internal review of the 2007 files and decided not to reopen them, saying that the case had been properly dealt with at the time based on the evidence provided to them by the police.
In a new statement, the CPS said: “The email was not in the possession of the CPS and so did not form part of the examination that the DPP carried out earlier this week.”
The statement added: “The DPP is now considering whether any further action is necessary.”
This development follows previous disclosures that:
• Police never interviewed Thurlbeck or other journalists named, according to the paper.
• Police failed to warn everyone who may have been hacked and are now still in the process of informing people who were potential targets.
• Police did not investigate the possibility the tabloid’s private eye succeeded in hacking the phones of many other targeted public figures, including the former deputy prime minister John Prescott.
The previously unknown email was one of the documents obtained by the Guardian and was provided to the House of Commons media select committee. The committee is due tomorrow to question the News of the World’s then editor, Andy Coulson, on his claims of ignorance.
The Guardian also handed over a contract in which the News of the World’s then assistant editor for news, Greg Miskiw, agreed to pay a bonus of £7,000 for information about Taylor. The CPS says that, unlike the email, that contract was passed to prosecutors by police, and was available to them as part of the evidence.
At the time of the investigation, Miskiw was no longer working for the News of the World, having left in 2005.
The documents only came to light because victims took legal actions in which police were required to hand over “unused material” they had obtained in a raid on the private detective concerned, which garnered a mass of paperwork.
The Guardian two weeks ago disclosed that the News of the World then paid more than £1m to secretly settle the legal actions by Taylor and two other figures from the football world.
Their lawyers had uncovered the evidence that other journalists had been involved.
Scotland Yard’s original inquiry began in December 2005 after members of the royal household suspected their voicemails were being intercepted.
In January 2007, the News of the World’s royal reporter, Clive Goodman, and Mulcaire, were jailed as a result. But their guilty pleas avoided a full trial at which more evidence may have come out.
More evidence may now be disclosed in legal actions being brought by other hacking victims, including the celebrity publicist Max Clifford, who has hired Taylor’s legal team.
News International said in an earlier statement that, apart from Goodman, “the police have not considered it necessary to arrest or question any other member of the News of the World staff”.
After saying last week that “where there was clear evidence that people had been the subject of tapping, they were all contacted by the police”, Scotland Yard 24 hours later announced that they were now also contacting people where there was a suspicion that they had been hacked
Statements from the DPP and Scotland Yard indicate that to avoid the case becoming unmanageable, they investigated at the time only a small sample of half a dozen, choosing those where evidence was strong, corroboration was available and the victims were willing to testify.
Tomorrow the spotlight moves to News International figures due to give evidence to the media select committee. As well as Coulson, listed witnesses include the paper’s former managing editor Stuart Kuttner and its current editor, Colin Myler.
The committee reopened its inquiry after noting “some contradiction” between disclosures in the Guardian and evidence given two years ago by News International’s then chairman, Les Hinton.
So far, the News of the World has remained silent following publication of the Thurlbeck and Miskiw documents.
The Metropolitan police said in a statement that the CPS trial barristers would have seen the Thurlbeck email at the time, because it had been in the police’s own files of “unused material”.
Scotland Yard did not explain why detectives had not followed it up, or turned it over to the DPP in their original submission of evidence.
The CPS said that “as in every case”, “The unused material was seen by prosecution counsel to determine whether or not it was capable of assisting the defence case.”
The Thurlbeck email would have been irrelevant to the Goodman and Mulcaire defence.
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Tories to force Commons vote on hacker case
July 15th, 2009 |
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Shadow home secretary says he hopes MPs will send a message to the government that hacker should be tried in UK not US
The Conservatives will today use a Commons vote to signal their opposition to the proposal to extradite Gary McKinnon to the US to face trial for hacking into American military computers.
Chris Grayling, the shadow home secretary, said he hoped MPs would “send a message” to the government that McKinnon, who has Asperger’s syndrome, ought to be put on trial in the UK and not in the US, where he faces a sentence of up to 60 years.
McKinnon is still using the courts to try to block his extradition and MPs will not vote directly on his case. But the Tories have tabled a motion expressing “very great concern” about the way the extradition system is working and calling for the Extradition Act 2003 to be reformed “at the earliest opportunity”.
The Tories are hoping that the Liberal Democrats and some Labour MPs will support them when the Commons votes on the motion this afternoon.
Ministers claim that the act, which affects extradition between the UK and the US, has benefited both countries and that the government does not have the power to stop McKinnon being sent to face trial in the US.
McKinnon, who is being backed by a high-profile Daily Mail campaign, yesterday asked the high court to overturn the refusal of Keir Starmer, the director of public prosecutions, to put him on trial in the UK on charges of computer misuse. If there were no UK prosecution, McKinnon would inevitably be extradited to stand trial in the US, the judges heard.
The court reserved judgment and said it hoped to give a decision in writing by the end of July.
McKinnon has admitted computer hacking and leaving a message in US military systems saying “I will continue to disrupt”, but his lawyers said his intention was only to cause “temporary impairment”, not lasting damage to the system.
They argue that his extradition would lead to “disastrous consequences”, including possible psychosis and suicide, because of his medical condition, which is on the autistic spectrum.
This morning Grayling told BBC Radio 4′s Today programme: “People on the autistic spectrum find it very difficult to deal with a big change in surroundings. To extradite somebody in that position to the US to a strange environment is undoubtedly going to cause health issues for Gary McKinnon. In the past, where there have been similar cases, we have seen trials take place in the UK.
“There is no doubt that an offence has been committed; Gary McKinnon has admitted that. But why on earth is this trial not taking place in the UK?
“I hope the House of Commons will send a message to the government that really this is not what the extradition system is supposed to do. These new rules were set up for very serious offences, for terror offences. I don’t believe parliament ever intended them to be used to extradite somebody with autism issues to face a charge like this.
“There are some suggestions that the home secretary has more powers to intervene than have so far been used.”
But the Home Office dismissed this claim. It said that the home secretary did not have the power to block McKinnon’s extradition.
“The case of Gary McKinnon remains before the courts. As such it would not be appropriate for us to comment on it in detail, except to say that this case has been subjected to the closest attention and to the greatest possible procedural fairness. The home secretary [then Jacqui Smith] gave very careful consideration before deciding in July 2006 to order extradition,” the statement said.
“It is important to be clear that, under the terms of the Extradition Act 2003, the home secretary must order extradition unless certain limited conditions are met. The courts have already said that those conditions are not met in Mr McKinnon’s case; and his attempts to defeat the US request have since been dismissed by the high court, the House of Lords and the European court of human rights.
“The information that must be provided by both the United States and the United Kingdom is effectively the same. The United Kingdom must demonstrate ‘probable cause’ to the United States courts, while the United States must demonstrate ‘reasonable suspicion’ to ours.
“Extradition is a key crime-fighting measure in our increasingly globalised world and, within what the law permits, we give maximum assistance to all of our extradition partners.”
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Tories to force Commons vote on hacker case
July 15th, 2009 |
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Shadow home secretary says he hopes MPs will send a message to the government that hacker should be tried in UK not US
The Conservatives will today use a Commons vote to signal their opposition to the proposal to extradite Gary McKinnon to the US to face trial for hacking into American military computers.
Chris Grayling, the shadow home secretary, said he hoped MPs would “send a message” to the government that McKinnon, who has Asperger’s syndrome, ought to be put on trial in the UK and not in the US, where he faces a sentence of up to 60 years.
McKinnon is still using the courts to try to block his extradition and MPs will not vote directly on his case. But the Tories have tabled a motion expressing “very great concern” about the way the extradition system is working and calling for the Extradition Act 2003 to be reformed “at the earliest opportunity”.
The Tories are hoping that the Liberal Democrats and some Labour MPs will support them when the Commons votes on the motion this afternoon.
Ministers claim that the act, which affects extradition between the UK and the US, has benefited both countries and that the government does not have the power to stop McKinnon being sent to face trial in the US.
McKinnon, who is being backed by a high-profile Daily Mail campaign, yesterday asked the high court to overturn the refusal of Keir Starmer, the director of public prosecutions, to put him on trial in the UK on charges of computer misuse. If there were no UK prosecution, McKinnon would inevitably be extradited to stand trial in the US, the judges heard.
The court reserved judgment and said it hoped to give a decision in writing by the end of July.
McKinnon has admitted computer hacking and leaving a message in US military systems saying “I will continue to disrupt”, but his lawyers said his intention was only to cause “temporary impairment”, not lasting damage to the system.
They argue that his extradition would lead to “disastrous consequences”, including possible psychosis and suicide, because of his medical condition, which is on the autistic spectrum.
This morning Grayling told BBC Radio 4′s Today programme: “People on the autistic spectrum find it very difficult to deal with a big change in surroundings. To extradite somebody in that position to the US to a strange environment is undoubtedly going to cause health issues for Gary McKinnon. In the past, where there have been similar cases, we have seen trials take place in the UK.
“There is no doubt that an offence has been committed; Gary McKinnon has admitted that. But why on earth is this trial not taking place in the UK?
“I hope the House of Commons will send a message to the government that really this is not what the extradition system is supposed to do. These new rules were set up for very serious offences, for terror offences. I don’t believe parliament ever intended them to be used to extradite somebody with autism issues to face a charge like this.
“There are some suggestions that the home secretary has more powers to intervene than have so far been used.”
But the Home Office dismissed this claim. It said that the home secretary did not have the power to block McKinnon’s extradition.
“The case of Gary McKinnon remains before the courts. As such it would not be appropriate for us to comment on it in detail, except to say that this case has been subjected to the closest attention and to the greatest possible procedural fairness. The home secretary [then Jacqui Smith] gave very careful consideration before deciding in July 2006 to order extradition,” the statement said.
“It is important to be clear that, under the terms of the Extradition Act 2003, the home secretary must order extradition unless certain limited conditions are met. The courts have already said that those conditions are not met in Mr McKinnon’s case; and his attempts to defeat the US request have since been dismissed by the high court, the House of Lords and the European court of human rights.
“The information that must be provided by both the United States and the United Kingdom is effectively the same. The United Kingdom must demonstrate ‘probable cause’ to the United States courts, while the United States must demonstrate ‘reasonable suspicion’ to ours.
“Extradition is a key crime-fighting measure in our increasingly globalised world and, within what the law permits, we give maximum assistance to all of our extradition partners.”
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Hacker’s human rights ‘ignored’
July 14th, 2009 |
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Human rights arguments against extraditing a British man accused of hacking into US military networks were not "confronted," a court has heard.
Gary McKinnon, 43, from Wood Green, London, wants to overturn a refusal to put him on trial in the UK on charges of computer misuse.
Edward Fitzgerald QC accused the Director of Public Prosecutions Keir Starmer QC of misapplying the law.
Mr McKinnon, who has Asperger’s Syndrome, faces trial in America.
Mr Starmer decided there was "insufficient evidence" to support a UK prosecution under the Computer Misuse Act.
If there is no UK prosecution, Mr McKinnon would inevitably be extradited to stand trial in the US, the judges heard.
Lawyers for the DPP are arguing the decision not to prosecute was "entirely rational" and was "manifestly not one which is susceptible to judicial review".
Mr McKinnon, who was arrested by British police in 2002, has already appealed unsuccessfully to the House of Lords and the European Court of Human Rights to avoid extradition.
Mr McKinnon is accused of hacking into 97 government computers belonging to organisations including the US Navy and Nasa during 2001 and 2002.
The US government says this caused damage costing $800,000 (£500,000) at a time of heightened security in the wake of the 11 September 2001 attacks.
He claims he was looking for details of UFOs.
"Psychological suffering"
Mr Fitzgerald told two High Court judges in London that extraditing Mr McKinnon would lead to "disastrous consequences" because of his medical condition, including possible psychosis and suicide.
Mr Fitzgerald also said Mr Starmer had failed to confront the new evidence concerning Mr McKinnon’s medical condition and deal with the human rights issues it raised.
If sent to the US, Mr McKinnon was likely to receive a substantial prison sentence and was unlikely to be repatriated to serve his sentence, Mr Fitzgerald said.
And the process of extradition, trial and sentence would expose Mr McKinnon to "an avoidable and unnecessary risk of serious psychological suffering" with "all of the attendant disastrous consequences," he added.
This application for judicial review at the High Court in London is the second recent legal challenge in Mr McKinnon’s case.
In the first, Mr Fitzgerald accused the home secretary of reaching a "flawed" decision, following medical evidence of the severe mental suffering that extradition would cause.
The judges are expected to give their ruling in both legal challenges later this month.</p
This article is from the BBC News website. © British Broadcasting Corporation, The BBC is not responsible for the content of external internet sites.
How would you prosecute the PM?
Corinna Ferguson talks Zasta through the rare, and costly, route of bringing private prosecutions against breaches of criminal law
Zasta asks:
Although there has always been a right to bring private prosecutions for breaches of the criminal law – indeed before 1879 there was no public prosecutor so it was the only way that anyone came before the criminal courts – it is a rarely-used procedure. There are a number of reasons for this. First, the police and prosecuting authorities have a duty to investigate and prosecute breaches of the criminal law, and they should only refuse to do so if they consider there is insufficient evidence or it is not in the public interest to prosecute. Second, private prosecutions are expensive to bring and entail a risk of being ordered to pay the defendant’s costs. Third, it will often be difficult for a private individual to gather sufficient evidence t o meet the high standards of proof which apply in criminal cases. Finally, the Crown Prosecution Service has the power to take over any private prosecution and thereafter to continue or discontinue it.
The first port of call for anyone who believes that a crime has been committed is to refer the matter to the police and/or the director of public prosecutions. This is what Mark Thomas was intending to do after Gordon Brown failed to obtain authorisation for what Thomas thought might amount to a “demonstration” in Parliament Square. However the question of whether all of the elements of an offence are present, or whether it is the public interest to prosecute may be highly contentious, and it is extremely difficult to challenge a decision of the DPP not to prosecute. So a private prosecution may be the only option for someone determined to see the matter in court and willing to take the financial risk.
The procedure was famously used in the Jerry Springer: The Opera blasphemy case that Anna Fairclough talked about in last week’s clinic. The prosecution was unsuccessful but the court did not question the right of a private individual, to bring the case in principle. Another well-known example of a private prosecution followed the Marchioness disaster in 1989. The high court upheld the right of the widower of one of the 51 victims to bring a prosecution for manslaughter against the owner and four employees of the dredger which had sunk the Marchioness pleasure boat. The court rejected the defendant’s argument that the prosecution should not be allowed because the CPS had already considered the matter and decided to bring charges only for “failing to keep a proper lookout”.
A private prosecution is commenced by requesting a summons from the magistrates’ court. A summons will only be issued if the magistrates are satisfied that (1) the allegation is of an offence known to the law, (2) the essential ingredients of the offence appear to be present, (3) the offence alleged is not brought too late, (4) the court has jurisdiction, and (5) the informant has the necessary authority. Further, some types of proceedings require the consent of a judge or the attorney general, including prosecutions for criminal libel against anyone responsible for the publication of a newspaper, prosecutions for incitement to racial hatred and prosecutions for assisting suicide.
The tests a Crown prosecutor must apply in deciding whether to pursue a prosecution (ie whether there is a realistic prospect of conviction and whether prosecution is in the public interest) do not apply to a private prosecutor. In practice, however, if the tests are not met the case is unlikely to get very far. This is because of the power given to the CPS to take over a case in order to put a stop to it. The CPS guidance says that a private prosecution “should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the full code test is not met”. The courts have pointed out that if the CPS apply precisely the same test when deciding whether to discontinue a case as they do when deciding whether to start proceedings in the first place then the right of private prosecution would be undermined. The fact that the CPS would not have brought the proceedings itself should not preclude a private prosecution going ahead.
The CPS guidance also states that it may be necessary to stop a private prosecution even where the evidential and public interest tests are met, if there is “a particular need to do so, such as where the prosecution is likely to damage the interests of justice”. One of the examples given is “cases where it can be said that the prosecution is vexatious… or malicious”. A private prosecution which is politically motivated, for example, may well be cut off for this reason.
So, in principle, it is possible for a member of the public to prosecute a public figure for an offence under SOCPA or indeed for fraud. However, even assuming that the difficulties outlined above can be overcome there are two further practical problems. First, a private prosecutor does not have any of the powers of the police to seize evidence or question suspects, and he or she has no right of access to statements, evidence, or other documents held by the CPS. Putting together sufficient evidence to amount to a “case to answer” on the basis of publicly available material will often be tricky. Second, the court may make an order that a party pay costs that have been incurred as a result of an unnecessary or improper act or omission. If it considers that the prosecution was completely misconceived and the defendant incurred costs as a result then there may be a substantial bill to pay.
Finally, all you Guardian-reading monarchists will be pleased to be reminded that the monarch is immune from being sued or prosecuted in the courts. So the Queen can demonstrate in Parliament Square without prior authorisation to her heart’s content.
Do you have a civil liberties or human rights question for the Liberty lawyers? Post it in our Liberty Clinic open thread.