A private prosecution is a criminal proceeding initiated by an individual or private organisation (such as a prosecution association) instead of by a public prosecutor who represents the state. Private prosecutions are allowed under common law, but have become rare in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals.
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A private criminal prosecution for contempt of court can be commenced against a party in Australia in the Federal Magistrates Court, the Family Court (and the Family Court of Western Australia - the only jurisdiction with a state based Family Court) or the Supreme Court of a State or Territory.
In the Federal Magistrates Court, Family Court of Australia, or the Family Court of Western Australia, an on-line form exists to commence such proceedings which can be downloaded, completed and filed.[1]
In the Supreme Court of Western Australia 0 55, R 4 (Order 55, Rule 4 of The Rules of the Supreme Court (WA) 1971[2]), either an Originating Summons (Form No.75 as is an ex-parte application) or Originating Motion (Form No.64) must be filed specifying the alleged contempt, and personally served on the alleged contemptor previous to a hearing before a judge sitting in chambers unless the court orders otherwise: O 55, R 2.
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 (naming him) ex parte the applicant: O 55, R 5.
Canada is a federation and therefore has both federal and provincial offences which can be privately prosecuted. Federally, there are Criminal and statutory offences, and provincially there are provincial and municipal.
Very basically, a citizen or organization 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, called Staying the charge, then it is allowed to proceed to and through court via the criminal procedure.
Each province in Canada deals with private prosecutions of provincial offences in their own way. Below is a list of the various provinces and how private prosecutions are dealt with in them.
In Ontario, the citizens voted on the creation of a statute which outlines the procedures involved in both private and public prosecutions.
That statute is called the Provincial Offences Act. The Act is divided into several categories called Parts for dealing with various types of offences such as traffic and parking tickets which are only issued by peace officers and municipal by-law enforcement officers, and more serious offences which are created under other provincial statutes, for example, the Corporations Act.
Private prosecutions are permitted in the United Kingdom. They are governed by different rules in the different jurisdictions.
In the early history of England, the victim of a crime and his family had the right to hire a private attorney to prosecute criminal charges against the person alleged to have injured the victim.[3] In the 18th century, prosecution of almost all criminal offences was private, usually by the victim.[4]
In England and Wales, the Crown Prosecution Service (CPS) is the primary prosecuting authority with a discretionary power to take over any private prosecution.[5] The CPS must apply a two part test of sufficiency of evidence and public interest before making a decision to take it over for the public good or leave it as a private prosecution.
The CPS can also prevent a private prosecution from continuing by taking it over and then discontinuing it. The CPS will do this only where there is not enough evidence to make a proper case or where a prosecution is against the public interest or where a prosecution could cause an injustice. In reaching this decision, it must balance the public good against a duty to preserve an individual's right to prosecute under the Prosecution of Offences Act 1985.
When taking over any private prosecution, the CPS may direct the police to conduct more investigation. This used to ensure that the best available evidence was placed before the court, as further trials were generally excluded by the principle of double jeopardy, until it was abolished by the Criminal Justice Act 2003.
Private prosecutions are rare in Scots law and require special circumstances surrounding the crime to be evident. Leave to prosecute must be obtained by granting of a Bill of Criminal Letters by the High Court of Justiciary. Within the 20th century, only three such prosecutions were made.[6]
In colonial America, because of Dutch (and possibly French) practice and the expansion of the office of attorney general, public officials came to dominate the prosecution of crimes. However, privately funded prosecutors constituted a significant element of the state criminal justice system throughout the nineteenth century.[7] The use of a private prosecutor was incorporated into the common law of Virginia and is still permitted there.[3] Private prosecutors were also used in North Carolina as late as 1975.[8]
Bruce L. Benson's To Serve and Protect lauds the role of private prosecutors, often employed by prosecution associations, in serving the needs of crime victims in England. Radical libertarian theory holds that public prosecutors should not exist, but that crimes should instead be treated as civil torts. Murray Rothbard writes, "In a libertarian world, there would be no crimes against an ill-defined 'society,' and therefore no such person as a 'district attorney' who decides on a charge and then presses those charges against an alleged criminal."[9]
Private prosecution is sometimes regarded with suspicion as a potential avenue for vexatious or malicious prosecution. Okagbue writes that the most useful control against such abuses is the power of the court to refuse to allow the case to proceed where it is of the opinion that there is not enough evidence to support the charge. The cost of private prosecution, including potential civil liability for malicious prosecution, can also deter frivolous prosecutions.[10]