Private prosecution/Private Strafverfolgung

In England, unlike in Germany and the USA, private prosecutions are permitted. The Independent reports on the dismissal of charges in connection with the death of Michael Matthews shortly after he became the youngest person to climb Everest (at least at that time).

Private Strafverfolgungen sind im englischen Recht möglich. In den letzten Jahren hört man eher von Zivilverfahren, die Erfolg haben können (nicht nur bei O.J.Simpson – in den USA gibt es aber keine private Strafverfolgung, soviel ich weiß).

bq. But the judge in the case yesterday ordered the charges against the men to be dropped after a strongly-worded ruling that they had been brought to court with insufficient evidence.
Judge Geoffrey Rivlin QC said that while it was clear there had been problems with the oxygen equipment, these had not contributed to Mr Matthews’s death.
The judge said: “If ever a criminal charge should be emphatically dismissed, this is it … The prosecution case was based upon pure and wholly impermissible speculation.”

Note the vocabulary: ein Verfahren einstellen – in criminal law, to drop charges, to dismiss a charge, drop a case. In civil law it would be to suspend / stay / discontinue proceedings.

This did reach the Crown Court, so it wasn’t stopped at the committal proceedings stage.

The Independent also reports on the long hot summer of 1911 (the record for hot weather in 1911 has only just been broken).

bq. On 6 September Thomas W Burgess, aged 37, covered in lard and stark naked except for a pair of thick motorist’s goggles and a black rubber bathing cap, stepped into the sea at Folkestone to make his 16th attempt to reach France by swimming across the Channel. …
Averaging a mile and three-quarters an hour and accompanied by a boat whose crew fed him a grape from time to time and 11 drops of champagne every 30 minutes, Burgess followed the irregular course dictated by the tide, a route he described as “a figure of a badly written capital M with a loop on first down stroke”.

I wouldn’t mind the grape and the champagne, but without the lard and the swimming.

17 thoughts on “Private prosecution/Private Strafverfolgung

  1. Yes, it occurred to me I misspoke – I wouldn’t mind the swimming, but he can keep the goggles and the attire.
    I know some translators translate in the nude in summer, but I haven’t tried this yet.

  2. 11 drops every half hour? Wearing but a black rubber bathing cap? Yes, that sounds fun :-)

    On a more serious note: We do have what amounts to Private Prosecution in Austria, with a few select offences.

    There are three procedural possibilities: a) the public prosecutor prosecutes “ex officio” (most offences), b) he needs permission from the victim, but will otherwise act on his own (“Erm

  3. Ingmar: well, it certainly feels like that in this weather.

    Yes, of course, Antragsdelikte and Privatdelikte in Germany too, sometimes for offences that would be civil wrongs in common law, but I’m talking about everything, in this case manslaughter (as you realize).

  4. Well, not being too familiar with German Criminal law, I wasn’t sure. No, you cannot privately prosecute manslaughter; which is a good thing, I find.

    And yes, we’re suffering from the same heat…

  5. Yes, one occasionally reads about some poor parents whose child has been murdered, where the police can’t find enough evidence, and these people spend years on a private prosecution which gets them nowhere. Funnily enough, the only recent case I can (half) remember where the prosecution was genuinely dragging its feet was triggered by a civil case. The judge was so forceful that a public prosecution started not long afterwards.

  6. I only remember a Claudia, a German in the USA, but I think she was an FKK enthusiast and also believed she would never have cancer because she ate only organically grown food.
    One does wonder about Mr Burgess’s encounter with ‘poisonous French jellyfish’ shortly before he reached land, the effect of which seems to have been that he asked the crew to sing the Marseillaise.

    It has been widely reported that judges and barristers have taken their wigs off in court this week in London, but presumably not their gowns.

  7. I would have been more worried about covering myself in lard in record high temperatures. Risk of fried swimmer maybe…? As I always work in shorts and T-shirt, even in winter, I think some people must think I’m a lazy, bone-idle lottery winner or something when I go to my PO box … I should be so lucky..
    Perhaps Mr. Burgess thought this might dissuade the evil creature from doing nasty things to him – I wonder if jellyfish can even distinguish between French and English … they might of course be able to recognise a tune or two…

    Paul

  8. I recall from the 1996 FIT Congress in Melbourne, Oz, that Claudia is or was also big-time into Harley-Davidson motor-bikes. Not that she would have translated starkers whilst riding on one…

    As for private prosecutions, Ingmar raises a good point of the expense – which also applies in the UK. There is also the major irritant that Peter Goldmsith QC, the Attorney-General of Eng. & Wales, can – as he has already done – forcibly take over or even stop/ ‘nolle prosequi’ a private prosecution.

    Of course, the *burden* of proof in this crim. process is on the private prosecutor throughout the trial and not on the defendant/ terminologically surely not an accused in this case, whilst we are at it.

    But the crim. *standard* of proof – beyond resonable doubt is a big sticking point. Even on a UK manslaughter, it still might be easier to start out as a civil case with the standard on the bal. of probabilities – Margaret referring to one such case that promptly came to the attention of the CPS.

  9. That sounds like her. I hope I haven’t been indiscreet.

    Why not an accused?

    Apparently there are private prosecutions in Scotland too, with the Lord Advocate’s consent.

  10. Well queried. In Eng. & Wales, the privately prosecuted party is called the Defendant – see the CPS’s UK website. In other jurisdictions, like the US & Can., the Accused is used. My doubt arises from the definition of Accused in Osborn’s Concise law dictionary: ‘one charged with an offence’. I don’t think a private person can ‘charge with an offence’, though that august newly merged body, the UK Revenue & Customs, may be able to when bringing their own prosecutions.

    Also, the Attorney-General’s or CPS’s decision to step in and take over – effectively hijacking – a priv. pros. is judicially unreviewable. That one has already been tried (on).

  11. Are you sure about that? I mean, I normally use the word ‘defendant’ anyway. So the mere use of ‘defendant’ does not mean that ‘accused’ could not be used. After all, a prosecution is a prosecution (and I think pp also includes various authorities as prosecutors, and of course the individual against authorities).
    Does it say somewhere that the term ‘accused’ may not be used? I can’t find anything in the Criminal Procedure Rules, but there may be something in there. But just the fact that they use one word doesn’t mean that the other is wrong. This is interesting because people do wonder whether to use ‘accused’ or ‘defendant’.

  12. Accused is not wrong, as it is used in Brit. Comm. jurisdictions other than the UK for which see http://www.cps.gov.uk/legal/section1/chapter_h.html where only the term Defendant is used.

    In the US, a Grand Jury’s consent to prosecution turns the ‘Accused’ into a ‘Defendant’.

    In the English TV Celebrity case of Michael Barrymore over a swimming pool death, the priv. pros. by a former Solicitor ran to 77 pages of charges. The judge in that case did consent, in my view rubber-stamping the charges that could not stick on their own, and said Barrymore should be informed of the action against him. But the Solicitor did not manage to serve the papers. So M.B. never became even a ‘prospective accused’.

  13. I’m not convinced that the use of the term defendant on the CPS site precludes the use of accused. What do I see, btw? ‘When A Defendant Or *Their* Representative Makes The Request For CPS To Take Over The Prosecution’ – someone on GerNet will slaughter us if they see, sorry if he sees that.

    You say, ‘In the US, a Grand Jury’s consent to prosecution turns the accused into a defendant’. Do you wish to consult a lawyer on that? According to Gifis, the opposite is the case:

    ‘A defendant is not accused until charged with the offense or until he becomes subject to actual restraint by arrest. The point at which a defendant is “accused” is important in determining when certain constitutional rights attach.’

    I would investigate more, but not tonight Josephine.

  14. Well, keep unconvinced! As with pluralising a corporate litigant, i.e. the Claimant(s) and Defendant(s), I’m not being categoric when many Eng. evidence and crim. law textbooks say in the preface that the terms accused and defendant ‘are used interchangeably herein’ – a point I’ve made before.

    As for the purists on GerNet, ‘their’ representative for the singular Defendant isn’t such a bad idea to cover not only his or hers, but also to sidestep its or theirs in a corporate manslaughter case when it is either the co. or the officers as ‘the directing minds’ that or who are being charged.

    Maybe Gifis – whoever that is – would like to consult a lawyer. The spelling of offense and ref. to constitutional rights suggest a saucy American source which, I believe, equates or mixes up being accused with the arraignment i.e. taking of the plea in the UK.

    I took my accused-to-defendant quote from this web ref. to Grand Juries in England http://www.btinternet.com/~gjy/grandjury/

  15. You referred to the USA, so I quoted Barron’s Law Dictionary (Gifis). Hardly surprising if it contains US spelling. The man is a law professor.
    You yourself mentioned US, so consulting a respectable US reference seemed a good idea.

    Agreed on ‘their’, of course.

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