cp149 Consents to Prosecution consultation - Law Commission

the rule of law, proclaim my right to set the law in motion.” I think that
this Bill is entirely right to preserve that important personal liberty. 252
1.5 Lord Diplock, in Gouriet v Union of Post Office Workers, 253
spoke of the right to
private prosecution as follows:
In English public law every citizen still has the right … to invoke the
aid of courts of criminal jurisdiction for the enforcement of the
criminal law … . It is a right which nowadays seldom needs to be
exercised by an ordinary member of the public, … but it still exists and
is a useful constitutional safeguard against capricious, corrupt or biased
failure or refusal of those authorities to prosecute offenders against the
criminal law. 254
1.6 In the same case, Lord Wilberforce similarly took the view that the right to bring a
private prosecution, “though rarely exercised in relation to indictable offences …
remains a valuable constitutional safeguard against inertia or partiality on the part
of authority”. 255
1.7 The Philips Commission in 1981, whilst noting that private prosecutions did not
feature significantly apart from prosecutions for common assault 256
and
prosecutions by retail stores for shop-lifting, referred to the right to bring a private
prosecution as the right “upon which … the whole prosecution system is in theory
built.” 257
The report refers to the widespread support for retaining the right to
private prosecution:
Prosecutions by private citizens … are very rare indeed and scarcely
seem a sufficient base to justify the position of the great majority of our
witnesses who argue in one way or another that the private prosecution
is one of the fundamental rights of the citizen in this country and that
252 Ibid, col 1050.
253 [1978] AC 435. The appellant had applied to the Attorney-General for his consent to act as
plaintiff in relator proceedings for an injunction to restrain the Union of Post Office
Workers from soliciting or endeavouring to procure any person wilfully to detain or delay
any postal packet between England and Wales and South Africa, as they had threatened to
do, contrary to certain provisions of the Post Office Act 1953 and the Telegraph Act 1863.
Consent was refused and the appellant made an application for a declaration that the
Attorney-General, by refusing his consent, had acted improperly and had wrongfully
exercised his discretion. The House of Lords held that such an exercise of discretion over
the bringing of a relator action could not be reviewed in the courts.
254 Ibid, pp 497H-498B.
255 Ibid, p 477B-C.
256 Explaining the reason for common assault being a privately prosecuted offence, the Philips
Report said (para 7.46) that it may well be to do with the way in which the offence is treated
by the Offences Against the Person Act 1861. It noted that the Act made common assault
“an essentially private wrong”, any proceedings having to be brought by or on behalf of the
aggrieved person. The relevant section of the 1861 Act, s 42, was repealed by the Criminal
Justice Act 1988, s 170(2), Sch 16.
257 Philips Report, para 7.48.
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