“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?
Guiliana Kendal, transgender campaigner has commenced a private prosecution against Linda Bellos, a lesbian feminist and longtime UK Labour Party member. Miss Bellos was reported to police over comments that she had made about her willingness to “thump” pro-transgender activists. When the police decided not to charge Miss Bellos, Miss Kendal took matters into her own hands and commenced a private prosecution.
Miss Bellos has been charged with a section 5 offence under the Public Order Act 1986. A person is guilty of this offence if it can be established that they used threatening words within the hearing or sight of a person likely to be caused alarm. The offence may only be heard in the Magistrates’ Court and on conviction a person may be subject to a fine not exceeding £1,000.
The comments made by Miss Bellos are an example of transphobic sentiment that exists in parts of the LGBT+ community. As a member of that community I certainly do not support such views and nor do I think they have any place in our society. However, whilst private prosecutions are often seen as a cost-effective and useful way to access justice, before one embarks on one there should always be careful consideration given to whether the benefits outweigh the risks.
What are those risks?
Firstly, a private prosecution can be stopped by the Director of Public Prosecutions (the DPP). The DPP can take over a private prosecution if they are not satisfied that either the evidential sufficiency stage or the public interest stage of the Full Code Test is met. In this prosecution it is suggested that transgender persons watching the speech online could have felt threatened or alarmed by Miss Bellos’ remarks. In her defence Miss Bellos says she was exercising her right to freedom of speech, was not aware her speech was being broadcast online and said her comments were in response to the beating of a feminist at a rally in Hyde Park, which had left her feeling angry and distressed. If this case is referred to the DPP, then notwithstanding the understandable upset which may have been caused by Ms Bellos’ comments, in my view there is a real prospect of the case being discontinued on either ground under the Full Code Test.
Second, there is a great deal of misinformation around about the ability of the private prosecutor to recover their legal costs connected to a private prosecution. In this matter, a section 5 offence is a summary offence and, as such, Miss Kendal will not be entitled to seek recovery of her legal costs from central funds. The power of a court to award prosecution costs from central funds is set out at section 17 of the Prosecution of Offences Act 1985. This provision allows the court to order the payment from central funds for indictable offences, “of such amount that the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings” and if the court considers there are circumstances that make it inappropriate for the prosecution to recover the full amount then they can order, “payment out of central funds of such lesser amount as the court considers just and reasonable.”
Third, the private prosecutor can also be required to pay costs to a defendant, under section 19 of the Prosecution of Offences Act 1985, in circumstances, “where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings.” Accordingly, the issue of costs is another important factor to be weighed in the balance before embarking on a private prosecution.
Trans people deserve better than this. However, I am concerned that in this particular situation a private prosecution may not be the best response. The next hearing of this matter is on 26 September 2018 at Westminster Magistrates’ Court. Miss Bellos has already expressed her intention to robustly defend the charge laid against her. I will watch with interest as to whether that will prove necessary or whether the DPP will intervene and discontinue this prosecution before then.
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