Private prosecution

A private criminal prosecution for contempt of court can be commenced against a party in Australia in the Federal Circuit Court, the Family Court (that is, the Family Court of Western Australia, as it is the only jurisdiction with a state-based family court) or the Supreme Court of a state or territory.

In the Family Court of Western Australia, an online form exists to commence such proceedings which can be downloaded, completed and filed.[1]

In the Supreme Court of Western Australia,[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 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 (naming him) ex parte the applicant.

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.[3]

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 (called staying the charge) then it is allowed to proceed to and go through court via the criminal procedure.

Each province in Canada deals with private prosecutions of provincial offences in their own way.

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(1) 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.

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.[10]

The National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) had its victory in the Constitutional Court of South Africa on 8 December 2016 when the organisation won its case it brought before the Court to institute Private Prosecutions in terms of Section 8 of the Criminal Procedure Act, 1977. This after the organisation lost its cases it brought before the North Gauteng High Court and the Supreme Court of Appeal of South Africa on the same matter of Private Prosecutions.[16] The reason the NSPCA brought the case before the Courts is because despite “overwhelming” evidence of animal cruelty or abuse‚ the National Prosecuting Authority of South Africa (NPA) declined to prosecute the cases brought by the organisation, resulting in animal abusers not being charged on charges of animal cruelty. The Constitutional Court of South Africa also ruled that the respondents, the Minister of Justice and Constitutional Development and the National Director of Public Prosecutions, were to pay the organisation's costs in all three applications.[17]

Private prosecution is allowed in English law.[18] In the early history of England, the victim of a crime and his family had the right to hire a private lawyer to prosecute criminal charges against the person alleged to have injured the victim.[19] In the 18th century, prosecution was private for almost all criminal offences against the person, usually by the victim.[20] One reason for this was that prosecution had never been conceived of as a public matter. The English system was based on the principles of individual and local prosecution in which the right of the private citizen was paramount.[21][22] The exception to this norm was in offences where the victim was the Crown, and the Attorney-General and the Solicitor-General represented the prosecution at state trials; for an example, see the 1637 ship money tax protest case of John Hampden.

As detailed above, a route to prosecution had been by victims at their own expense or lawyers acting on their behalf. From the Metropolitan Police Act 1829 onwards, as the police forces began their present form, they began to take on the burden of bringing prosecutions against suspected criminals.

In 1880, Sir John Maule was appointed to be the first Director of Public Prosecutions, operating as a part of the Home Office. The jurisdiction was only for the decision as to whether to prosecute, and just for a very small number of difficult or important cases. Once prosecution had been authorised, the matter was turned over to the Treasury Solicitor. Police forces continued to be responsible for the bulk of cases, sometimes referring difficult ones to the Director.

Prior to its termination in 1933, criminal prosecution required a true bill of indictment from the grand jury, and so frivolous and vexatious proceedings were designed to be avoided at this stage (although this did not turn out to be the case in practice).

In 1962, the Royal Commission on the Police recommended that police forces set up independent prosecution departments so as to avoid having the same officers investigate and prosecute cases.

The Royal Commission's recommendation was not implemented by all police forces, and so in 1978 another Royal Commission was struck, this time headed by Sir Cyril Philips. It reported in 1981, recommending that a single unified Crown Prosecution Service with responsibility for all public prosecutions in England and Wales be set up. A White Paper was released in 1983, becoming the Prosecution of Offences Act 1985, which established the Crown Prosecution Service under the direction of the Director of Public Prosecutions, consisting of a merger of his old department with the existing police prosecution departments. It started operating in 1986. The CPS can also prevent a private prosecution from continuing by taking it over and then discontinuing it. The CPS supposedly 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 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 1985 act.

When taking over any private prosecution, the CPS may direct the police to conduct further investigations. The intention of this was to ensure the best available evidence was placed before the court, as further trials were generally excluded until 2003 by the double jeopardy rule. The latter rule was abrogated in certain circumstances of "new and compelling evidence", and for a limited range of the most serious offences such as rape, armed robbery and murder, by the Criminal Justice Act 2003. Recommended by Blunkett, Irvine and Goldsmith,[23] this change is permitted by the optional Article 4 of the Seventh Protocol to the European Convention on Human Rights, although the United Kingdom is not a party to it.

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 two such applications were made.[24]

State law currently allows private citizens the right to press charges under certain circumstances. In Alabama, a citizen or "victim" who has probable cause to believe that a crime has been committed can directly go to court and sign an arrest warrant before a magistrate, without the police or a judge's approval. The government will then handle the prosecution of the offense. [29] [30] [31]

Private prosecutions are not legal in California.[32]

In 1974, the Colorado Supreme Court ruled that private prosecutions were improper and prejudicial to the defendant.[33]

In Georgia, criminal proceedings may be initiated at the request of a private citizen, but only after the defendant is given an opportunity to argue why he or she should not be charged.[27]

Idaho allows private citizens to file criminal complaints to a magistrate; the magistrate can issue an arrest warrant upon satisfaction that a crime has occurred.[27]

Kentucky allows a private citizen to initiate criminal cases by filing criminal complaints, although it is up to the county attorney or Commonwealth's attorney to decide whether to proceed with the case.[34]

Maryland allows private citizens to file affidavits against another citizen.[35]

Private prosecutions in Massachusetts were declared void in 1849 and formally outlawed in 1855.[36]

Michigan banned private prosecutions in 1875.[36] Private citizens can however file and attest misdemeanor arrest warrants which if accepted by a judge or magistrate would be automatically transferred to a prosecuting attorney.

The Minnesota Supreme Court ruled in 1977 in State ex rel. Wild v. Otis that a private citizen does not have a right to prosecute an alleged crime.[37]

The right to private prosecution in Missouri was removed in 1976 following the decision in State v. Harrington.[38]

New Hampshire allows private prosecution of any crime that does not carry incarceration as a possible penalty. However, prosecutors have the right to dismiss private criminal charges.[39]

New Jersey continues to allow private prosecutions in its Municipal Courts. However, the 1995 decision of State v. Storm prohibited private prosecutions if the party intending to prosecute has a conflict of interest with the defendants or a financial interest in the case.[40] Furthermore, state law states that all private prosecutions require approval of the county prosecutor and the court.[41]

In 2002, a federal district court concluded in Kampfer v. Vonderheide that private prosecutions were barred under New York law as a violation of the defendant's due process rights. However, in Kampfer the court distinguished, in dicta, private prosecutions where there is an "underlying civil cause of action" in relation to the events which gave rise to the prosecution.[42]

Private prosecutors were used in North Carolina as late as 1975.[43] The court ruled in State v. Best in 1974 that an elected prosecutor must be in charge of all prosecutions.[44] A private citizen may go before a magistrate to request that criminal process be issued,[45] but any such charges are prosecuted by the State.

Ohio state law allows private citizens to file an affidavit to support criminal charges.[46] However, the actual prosecution is limited to the state.[47] Only prosecutors can present a criminal case to a grand jury. State law was further amended in 2006 to bar judges from issuing arrest warrants in private prosecution cases.[48]

Private prosecutions in Pennsylvania require approval from a state prosecutor.[49]

In 2001, the Rhode Island Supreme Court ruled in Diane S. Cronan ex rel. State v. John J. Cronan that a private citizen could file criminal complaints for misdemeanors. In order to do so under R.I. Gen. Laws § 12-10-12, a judge of the district court or superior court must choose to place the criminal complaint on file. However, prosecution of felonies remains limited to the state. Private prosecutors also cannot seek penalties of greater than one year of incarceration or a fine of greater than $1,000.[50]

The right was removed from South Carolina law in the nineteenth century.[51] However, private citizens may still initiate a criminal case by filing a request with a magistrate, although magistrates can issue only a summons in response to private criminal complaints.[27]

Private prosecutions in Wisconsin were outlawed following the decision of Biemel v. State in 1855.[39] In 1890, the court ruled that a private attorney can assist in a prosecution as long as there is no conflict of interest.[33]