cp149 Consents to Prosecution consultation - Law Commission

Thames by a dredger, causing the death of 51 people. The husband, G, of one of
the victims brought a private prosecution for manslaughter against the applicants
and four of their employees. The applicants sought judicial review of a decision of
the stipendiary magistrate not to stay proceedings. It was argued, inter alia, that G
did not have locus standi to bring the prosecution. The court held, refusing the
application, that section 6(1) precluded private prosecutions only in those
proceedings (set out in section 3(2)(a), (c) and (d)) 81
which the DPP was under a
duty to take over; it did not preclude private prosecutions in those proceedings
(under section 3(2)(b)) where the DPP was under a duty to institute proceedings.
PROCEDURAL CONSTRAINTS ON PRIVATE PROSECUTIONS
1.30 Despite the widely-accepted principle that every individual should have a right of
private prosecution unless there is very good reason to the contrary, 82
that right is
subject to a number of procedural 83
limitations:
(1) a magistrate may refuse to issue a summons;
(2) the Attorney-General may terminate proceedings by entering a nolle
prosequi;
(3) the Attorney-General may prevent criminal proceedings by vexatious
litigants by applying to the High Court for a criminal or all proceedings
order;
(4) the DPP may take over private prosecutions and terminate them, whether
by discontinuance, withdrawal or offering no evidence; and
(5) the Law Officers, the DPP or some other designated officer or body may,
with regard to those offences where consent is a condition precedent to the
institution of criminal proceedings, refuse that consent.
1.31 Our concern in this consultation paper is the last of these limitations, the operation
of consent provisions. For the moment, however, we shall set out briefly the other
procedural constraints on private prosecutions.
The discretion of the magistrates to refuse to issue a summons
1.32 In the 1979 case of R v West London Metropolitan Stipendiary Magistrate, ex p
Klahn, 84
Lord Widgery CJ stated that, in deciding whether to issue a summons, a
magistrates’ court should ascertain at minimum: (1) whether the offence alleged is
known to law and whether the essential ingredients of the offence are prima facie
present, (2) whether time-limits have been complied with, (3) whether the court
has jurisdiction and (4) whether any consent to prosecute, if required, has been
81 The text of all these paragraphs is set out in Appendix A and in para 2.10 above.
82 Memorandum of the Attorney-General to the Select Committee on Obscene Publications.
See the report of the Select Committee, HC 123–1, App 1, p 23 para 3. At para 6.4 we state
our support for this principle.
83 In Part V we consider other, practical, constraints on private prosecutions.
84 [1979] 1 WLR 933, 935H.
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