Public & private prosecutions – Seán Crossan's Scots Law

A civil action

Photo by Mateus Campos Felipe on Unsplash

What if criminal law lets down victims (and by extension their families)? Over the past year, several of my Blogs have looked at situations where the Crown Office and Procurator Fiscal Service have either not succeeded in prosecuting a suspect in a criminal case or have declined to do so.

In Scotland, the ability to bring a private prosecution is heavily restricted making it almost an impossible task to obtain the necessary authorisation from the High Court of Justiciary (via a Bill of Criminal Letters).

Victims (or their families) will often then have little choice but to turn civil law for some sort of resolution – usually an action for compensation.

I often emphasise to students that criminal and civil law have very different objectives: criminal law is used by the State to punish those individuals who would threaten the safety or security of the community by their actions; civil law, in this context, is primarily concerned with compensating the victims of a wrongful act.

Admittedly, certain types of conduct can be both criminal and civil in nature e.g. assault, dangerous driving, fraud and theft. This means that an individual could face the prospect of two trials. The outcome of each trial is independent of each other.

It is also worth remembering that criminal and civil law have different standards of proof. In a criminal trial, the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime; in civil law, the claimant (or pursuer) must show on the balance of probabilities that the respondent (defender) was responsible for the harm caused. The civil standard of proof is therefore a lower standard of proof.

So, it was of some interest that, in the last week, two stories were widely reported in the media which highlighted the difference between the two systems.

In the first story, it was established that John Downey, a former member of the Irish Republican Army, bore responsibility for the deaths of four members of the Household Cavalry (two British Army regiments) in July 1982. An IRA active service unit had planted a car bomb in London which had caused these fatalities. Downey was a member of that unit, but he had immunity from criminal prosecution under the terms of the Belfast (or Good Friday) Agreement 1998. The families of the victims had no alternative but to raise a civil legal action in the English High Court in order to establish that Downey was an active participant in the planning and execution of the bombing. The success of this action means that the families can now pursue Downey for damages (see Sarah Jane Young v John Anthony Downey [2019] EWHC 3508 (QB)).

It is important to stress that this judgement establishes Downey’s civil liability for the deaths of the four serving members of the British armed forces; it does not establish criminal liability.

A link to the judgement of the English High Court can be found below:

https://www.judiciary.uk/wp-content/uploads/2019/12/APPROVED-JUDGMENT-Young-v-Downey-18.12.19.pdf

The second story is from further afield and involves a female, Japanese journalist (Shiori Ito) who successfully sued a male TV journalist (Noriyuki Yamaguchi) who had raped her. This case broke many taboos in Japan because victims of rape tend not to publicise their ordeal. Again, the decision of Tokyo’s District Court establishes Yamaguchi’s civil liability for rape – not criminal liability.

In Scotland, of course, we have had two recent civil actions whereby victims of rape have successfully pursued their attackers for the right to receive compensation. It might not be the ideal solution, but in the absence of any action on the part of the State prosecution authorities, it may be the only recourse to justice that the victims have.

Links to media articles about the two cases can be found below:

https://news.sky.com/story/hyde-park-bombing-ira-member-john-downey-was-responsible-for-1982-attack-11889683

Journalist wins Japan civil rape case

Related Blog Articles:

The public interest?

https://seancrossansscotslaw.com/2019/11/12/the-public-interest/

The burden of proof

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

Private prosecutions

https://seancrossansscotslaw.com/2019/05/29/private-prosecutions/

Copyright Seán J Crossan, 23 December 2019

The public interest?

Photo by Karl Bewick on Unsplash

We have an independent criminal prosecution service in Scotland headed by the Lord Advocate (a Scottish Government Minister). James Wolffe QC, the current Lord Advocate, has responsibility for the Crown Office and the Procurator Fiscal Service.

Yesterday, the role of the Lord Advocate came under intense media scrutiny as a result of the decision of the Crown Office not to prosecute several Police Scotland officers who had been accused of causing the death of a man who had been taken into custody in 2015.

The deceased was 31 year old Sheku Bayoh, who was arrested by Police officers in the Scottish town of Kirkcaldy. It was later established in a post mortem that Mr Bayoh had consumed drugs (MDNA and Flakka).

On a more sinister level, Mr Bayoh was found to have 23 different physical injuries. The Bayoh family and their solicitor (Aamer Anwar) always maintained that the actions of Police officers had caused the death and that they should face prosecution for their actions.

To the dismay of the Bayoh family, the Lord Advocate has declined to pursue criminal charges against the Police officers as this would not be in the public interest.

Today, Humza Yousaf, the Scottish Government Cabinet Secretary for Justice decided to convene a public inquiry into the circumstances of Mr Bayoh’s death – which may be some small consolation to his still grieving family.

The Bayoh family may also be considering the possibility of a civil action for compensation against the Police officers who they are alleging have responsibility for the death.

This case is a timely reminder that it is the State (or the Crown) which has the ultimate power to determine who will be prosecuted for crimes – not the victim or the family of the victim.

The possibility of the Bayoh family being granted the right to initiate a private prosecution against the Police officers is unlikely. The High Court of Justiciary must grant permission, by way of a Bill of Criminal Letters, for any private prosecution to proceed in the first place.

It should go without saying that the prosecutor in a private prosecution will still have to prove the allegations against the accused.

Two fairly recent attempts to raise private prosecutions in Scotland have been rejected out of hand by the High Court of Justiciary (see Bill for Criminal Letters by (1) John and Linda Stewart and (2) Allan and Aileen Convey Against William Payne AND (1) Matthew McQuade and Jaceline McQuade and (2) Yvonne Reilly Against Henry Clarke [2016] HCJAC 122 HCA/16-2/XM HCA/16-3/XM).

A link to the Opinion of the High Court of Justiciary in respect of these matters can be found below:

https://www.scotcourts.gov.uk/search-judgments/judgment?id=d26a25a7-8980-69d2-b500-ff0000d74aa7

Prior to this legal action, there had been one, other private prosecution in Scotland during the 20th Century and that matter had been concluded as far back as 1911 (the actual Bill of Criminal Letters was granted in 1909 – see J & P Coats Ltd v Brown 1909 6 Adam 19).

A link to a story about the Lord Advocate’s decision can be found on the BBC Scotland website:

Sheku Bayoh: Family feel ‘betrayed’ over decision not to prosecute officers

His family said they felt betrayed over the decision not to bring criminal charges against police officers.

Copyright Seán J Crossan, 12 November 2019

Private prosecutions

Photo by Jannes Van den wouwer on Unsplash

The bookies’ favourite to be the next UK Prime Minister, the Right Honorable Alexander Boris de Pfeffel Johnson MP (or simply ‘Boris’) is to face a private prosecution for misconduct in a public office.

The misconduct relates to claims (or ‘lies’ depending on your viewpoint) which Mr Johnson allegedly made about the amount of money the UK would save if it ceased to be a member state of the European Union. These claims were allegedly uttered by Mr Johnson during and immediately after the Brexit referendum campaign in early summer 2016 (apparently somewhere in the region £350 million per week would be saved by UK taxpayers following a successful UK exit from the EU).

This blog is not really about the ins and outs of Mr Johnson’s current legal difficulties, but it highlights the fact that the concept of a private prosecution is something of a cultural and legal oddity in Scotland.

In Scotland, we take a somewhat rigid view that criminal prosecutions are very much the responsibility of the Crown or the state. It is very rare (and highly unusual) for private prosecutions to be permitted in Scotland. In any event, the High Court of Justiciary must grant permission, by way of a Bill of Criminal Letters, for any private prosecution to proceed in the first place. It should go without saying that the prosecutor in a private prosecution will still have to prove the allegations against the accused.

A link to the Opinion of the High Court of Justiciary in respect of these matters can be found below:

https://www.scotcourts.gov.uk/search-judgments/judgment?id=d26a25a7-8980-69d2-b500-ff0000d74aa7

The Glasgow Rape Case

The most famous, partially successful private prosecution in Scotland in was the affair which became known popularly as the Glasgow Rape Case. In 1982, a rape victim was permitted to raise a private prosecution against three of her alleged assailants (see X v Sweeney (1982) JC 70). Prior to this legal action, there had been one, other private prosecution in Scotland during the 20th Century and that had been concluded as far back as 1911 (the actual Bill of Criminal Letters was granted in 1909 – see J & P Coats Ltd v Brown 1909 6 Adam 19).

A system of public prosecution

The main characteristic of the Scottish criminal prosecution system is that it is a public prosecution system i.e. completely controlled and supervised by the state authorities i.e. the Crown Office and the Procurator Fiscal Service (COPFS). The following news stories demonstrate quite clearly that it will be COPFS that have the final say as to whether an individual faces prosecution in a Scottish criminal court:

Trump paraglider protester to face no criminal charges

The protester was arrested after an air exclusion zone was breached at Mr Trump’s Ayrshire golf resort.

Nancy Glen sinking: Police investigation dropped

Duncan MacDougall and Przemek Krawczyk died when the fishing boat sank in Loch Fyne in January 2018.

That said, most prosecutions in England and Wales (not to forget about Northern Ireland) will be initiated by the respective Crown Prosecution Services in each of these neighbouring jurisdictions.

Not all societies throughout history have employed a system of public prosecution to punish wrong-doers who have threatened the safety and security of their fellow citizens. In the Ancient Rome of Julius Caesar, the principles of criminal law were highly developed but their enforcement relied on a system of private prosecution whereby lawyers were commissioned (and petitioned) by interested parties to take on the role of prosecutors. There was no such thing as an office of State Prosecutor.

In one of the most famous examples of a successful private prosecution commissioned in Ancient Rome, Marcus Tullius Cicero, the lawyer, was approached by leading members of several Sicilian communities in 70 BC who wished him to commence a prosecution against the incredibly corrupt Roman Governor of Sicily, Gaius Verres. Undoubtedly, Verres had committed terrible crimes against the people of Sicily (this seemed to be a prerequisite for most Roman officials), but Cicero’s decision to prosecute him in the Roman law courts was not entirely altruistic. Cicero calculated that, if he won the extortion case against Gaius Verres (which he duly did in 69 BC), he would inherit Verres’ patrician status and wealth, not to mention the fame and the hordes of potential clients any victory would almost certainly bring him. Cicero also had his eyes on a political career and coveted one of the supreme offices of the Roman Republic, the Consulship or Chief Magistrate (in fact there were normally two Consuls at any one time). On such private prosecutions were the foundations of successful political careers established and Cicero became a Consul in 63 BC.

Even famous Roman citizens such as Cicero’s contemporary and rival, Julius Caesar were not immune from prosecution in the law courts. Caesar’s many political enemies used the threat of prosecution against him in order to prevent him from participating fully in the political life of Rome. For many years, Caesar was effectively an exile in Gaul (much of modern day France) where he was Governor until, in 49 BC, he crossed the River Rubicon and returned to Rome at the head of his army to seize power.

The point of this history lesson is to demonstrate that systems of private criminal prosecution can be easily manipulated by the desires and designs of individuals or special interest groups in a way that a system wholly controlled by a truly democratic State based on the rule of law (where everyone in theory at least is equal) cannot.

It has been said that the private prosecution against Mr Johnson is an attempt by highly partisan “Remain” supporters to halt Brexit.

To be sure there will be lots of legal arguments and procedural hurdles to be negotiated by both prosecution and defence lawyers in the Johnson Affair. It will be interesting to see how this case plays out. At a basic level, it provides a useful contrast for students of criminal law in relation to the difference in procedure north and south of the border.

A link to the story on the Sky News website about the private prosecution of Mr Johnson can be found below:

Boris Johnson to face court over alleged EU referendum misconduct
http://news.sky.com/story/boris-johnson-to-face-court-over-alleged-eu-referendum-misconduct-11730747

An interesting article written by John Macauley, the solicitor acting for the victim in the Glasgow Rape Case can be found below:

http://www.journalonline.co.uk/Magazine/62-1/1022696.aspx#.XO_hZMhKiM8

Postscript

On Friday 7 June 2019, Lady Justice Rafferty and Mr Justice Supperstone sitting in the English High Court quashed the attempt to bring a private prosecution against Boris Johnson. The matter will go no further.

A link to the story on the BBC News site can be found below:

Brexit: Boris Johnson £350m claim case thrown out by judges

Tory leadership contender denied acting improperly in saying the UK gave the EU £350m a week.

Where there’s blame, there’s a claim?

Photo by Kevin Grieve on Unsplash

Where there’s blame, there’s a claim? Not if you try to fake an accident there isn’t, as one woman from West Yorkshire has found to her cost.

Trip and slip claims are very common types of delict actions (tort in England), but they have to be genuine if the pursuer (claimant) is to have any chance of success. In Chapter 3 of Introductory Scots Law, I discuss the most common type of delictual claim – negligence – and the fact that the pursuer generally must prove that the defender was at fault.

On 2 April 2019, the BBC reported that Farida Ashraf of West Yorkshire had been successfully convicted in a private prosecution, at Bradford Crown Court, brought by the insurance company, Aviva. Ms Ashraf had submitted a personal injury claim for £3,000 in relation to an alleged accident at a Bradford supermarket. This civil claim had been dismissed because it was basically fraudulent. Aviva then commenced a private prosecution against Ms Ashraf, which resulted in her receiving a 21 month prison sentence (suspended for 2 years).

As a point of comparison between Scotland and England, it’s interesting to note that this was a private prosecution brought by Aviva. Such an action would not have happened in Scotland because the Crown Office and Procurator Fiscal Service decide whether criminal proceedings should have been initiated – not a private party like Aviva. In Scotland, insurance companies can, of course, report their suspicions to the Police that a claim may be fraudulent. The Police can investigate and a report will then be submitted to the Procurator Fiscal.

The private prosecution brought against Ms Ashraf is thought to be one of the first successful types of such actions in England.

A link to the BBC article can be found below:

Woman staged fall at Bradford store to claim payment

Farida Ashraf tripped over a crate placed by accomplices and tried to claim £3,000 for injuries.