Private Prosecution and the Victim of Crime

Abstract

In their duty to keep the peace, criminal prosecutions are usually initiated by the Police or Crown. However, for most of English and Australian legal history, the duty to initiate criminal proceedings through to trial rested with the victim of crime. It was only after the establishment of a Metropolitan Police Force in England and, in particular, the rise of public prosecuting authorities in the form of an Office of the Director of Public Prosecutions (ODPP) that the duty of the victim to initiate and carry out a prosecution substantially declined. Preceding these comparatively recent developments, however, we find the common law power of the individual to inform a court of an offense and undertake a prosecution as a fundamental liberty or right. Supported by a number of recent high profile private prosecutions, this history suggests that although the power of the victim to prosecute is largely limited in accordance with the statutory discretion of the ODPP to undertake all criminal proceedings, the power of private prosecution remains. This article maps the common law power of the victim's right to prosecute, limitations on this power, and the rudiments of this power as it survives today. This article argues that, although sparingly exercised, the common law power of the victim to prosecute remains largely unchanged. Further, the degradation of victim prosecutorial power also explains the significant rise in defendant rights in the nineteenth century, and the tendency to now support victim interests away from the criminal courts through criminal injuries compensation and victim assistance. This article concludes that despite statutory and procedural limitations to the contrary, the victim's right to prosecute is a fundamental legal right that is in fact supportive of various developments in public prosecution as it functions today.