“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?
We recently considered the tragic events of the Glasgow Bin Lorry incident where six people died and 15 more were injured on 22 December 2014. At that time the Fatal Accident Inquiry (FAI) was ongoing and we looked at some of the hurdles the families of the deceased would need to overcome to commence a private prosecution against the driver of the Bin Lorry, Harry Clarke.
The outcome of the FAI was released on 7 December 2015. Sherriff John Beckett, concluded that Mr Clarke had deliberately concealed his ill-health and had lied to his doctors, ‘deliberately misled’ his employers and the Driver Vehicle and Licensing Agency (DVLA). Sherriff Beckett issued robust findings to the effect that this tragedy could have been avoided if Mr Clarke was truthful about his medical history or had not applied for further roles as a driver after a blackout whilst at the wheel of a bus in 2010.
On the back of those findings the lawyer for the McQuade and Sweeney families, Paul Kavanagh, has already signalled his intention to apply for permission to commence a private prosecution in the immediate future. Once again, it seems, the prospect of a private prosecution brought by some of the families of the deceased is back in the spotlight.
Private Prosecutions - Scotland vs England and Wales
The process of commencing a private prosecution differs in Scotland to that which applies in England and Wales.
In Scotland prosecutions by private individuals are possible but very rare. To bring a private prosecution an individual must apply to the High Court for a ‘bill of criminal letters’, which can be opposed by the Lord Advocate (the individual who is the head of the systems of criminal prosecutions and investigation of deaths in Scotland) and the alleged offender. There must also be special circumstances to justify a private prosecution, which are notoriously difficult to establish.
By comparison in England and Wales the right to bring a prosecution is enshrined in statute. A private prosecution can be started by any individual, victim, interested party, organisation, or company. The right to bring a private prosecution is provided in section 6(1) of the Prosecution of Offences Act 1985. Anyone has the right to bring a private prosecution, unless the offence is one that requires the consent of the Director of Public Prosecutions (DPP) or the Attorney-General.
Because the pathway for accessing justice is less burdensome in England and Wales this leads to a greater prevalence of private prosecutions “South of the Border”.
Is the process really that straight-forward in England and Wales?
Don’t be fooled. Private prosecutions involve a complexity not found in public prosecutions. For that reason it is very important that those interested in bringing a private prosecution appreciate their legal and ethical obligations before they commence criminal proceedings. Lawyers who are expert in this field can help the private prosecutor to decide whether to commence a prosecution after they have advised whether there is sufficient evidence to provide a realistic prospect of conviction and whether the prosecution is in the public interest.
The lawyers who have conduct of a private prosecution have a duty to act as ministers of justice and must therefore must act to the same high standard expected of a public prosecutor. In practice that means that you will be obliged to hand over all material obtained in the course of the investigation to the lawyer to review and they will be obliged to disclose to the offender material that might reasonably be considered capable of assisting the defence case or undermining the prosecution case, even in situations where you do not want them to. There are also limitations as to what information and documents the lawyer can provide to you throughout proceedings.
As a private prosecutor you do not have the same powers that the police and other such bodies have to obtain evidence from third parties, as a consequence private prosecutions are best suited to cases where you have already obtained (or are able to obtain) the bulk of the evidence that will be necessary to bring a private prosecution. It is also important that any evidence you seek to rely upon to bring a private prosecution has been lawfully obtained, as evidence unlawfully obtained could result in the prosecution failing. This is another reason why you should engage a lawyer before you bring a private prosecution.
The DPP can take over a private prosecution with a view to continuing the proceedings as a public prosecution or to discontinue it. A private prosecution can also be ‘stayed’ (stopped) by the courts where it is found that to continue the prosecution would amount to an abuse of process. Prosecutions which fall into this category may not only lead to a costs award against the prosecutor but may also prevent the prosecutor recovering their costs as well as incurring negative publicity and reputational impact. The likelihood of these risks occurring can be minimised by instructing a lawyer who understands and can manage the risks involved.
Back to Scotland
The Crown Office maintains their view that there is insufficient evidence to mount a case against Mr Clarke and that the findings of Sherriff Beckett have done nothing to undermine their earlier decision not to commence a public prosecution. Clearly the families of Erin McQuade, 18, and her grandparents Jack Sweeney, 68, and Lorraine Sweeney, 69 take a different view. We await with interest the grounds that the families will rely on to seek permission to mount a private prosecution and the outcome of their application.
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