Private prosecution in English criminal procedure: history and legal nature

Abstract

Historically, English criminal procedure is characterised by the role of private prosecution, which allowed each person to bring charges against any other person. A relic of the Middle Ages, it has nevertheless survived successfully to the present day, although it has undergone a number of significant transformations. Its remarkable resilience, despite its inability to serve as a full-fledged instrument of Crown criminal policy, is due to the fact that the ancient procedural form is constantly emerging with new uses. In the twentieth century there was a growing demand for it by commercial and non-commercial organizations who needed an instrument for the proactive prosecution (in public or private interests). Continental critics, who had earlier protested against the introduction of the English model of private prosecution into the criminal procedure of Germany or France, raised many objections against it, but the English history has shown that their fears were baseless. At the same time, the development of public prosecutions in England has greatly reduced the space for private initiative. Most of the procedural advances, among them the increased accessibility of criminal justice, were due to the expansion of the state.

References

1. Gushchin, V.E. and Aleksandrov, A.S. (1998). Popular Prosecution in Criminal Court. Nizhny Novgorod (in Russ.).
2. Mittermaier, K.I.A. (1864). Criminal Procedure in England, Scotland and the North America. Moscow (in Russ.).
3. Murav’ev, N.V. (1889). Public Prosecution, It’s Organization and Functioning. Vol. 1. Moscow (in Russ.).
4. Polyanskii, N.N. (1915). On the Participation of Private Persons in Criminal Prosecutions (Fundamental Foundations of Actio Popularis in Criminal Procedure). Separate paper from “Legal Herald” journal, IX(I), pp. 1–46 (in Russ.).
5. Polyanskii, N.N. (1911). Right of Corporations on Criminal Action. Legal Issues, 6(2), pp. 75–124 (in Russ.).
6. Foinitskii, I.Ya. (1910). Criminal Procedure. Vol. II. Saint-Petersburg (in Russ.).
7. Baker, J. (2019). An Introduction to English Legal History. Oxford.
8. Beames, J. (1812). A Translation of Glanville. London.
9. Beattie, J. (1986). Crime and the Courts in England, 1660–1800. Oxford.
10. Beattie, J. (2012). The First English Detectives: The Bow Street Runners and the Policing of London, 1750–1840. Oxford.
11. Blackstone, W. (2016). Commentaries on the Laws of England. Book IV: On Public Wrongs: Vol. IV. Oxford.
12. Devlin, P. (1960). The Criminal Prosecution in England. Oxford.
13. Fielding, H. (1751). An Enquiry Into the Causes of the Late Increase of Robbers, & C., with Some Proposals for Remedying this Growing Evil: In which the Present Reigning Vices are Impartially Exposed; and the Laws that Relate to the Provision for the Poor, and to the Punishment of Felons are Largely and Freely Examined. London.
14. Godfrey, B. (2008). Changing Prosecution Practices And Their Impact On Crime Figures, 1857–1940. The British Journal of Criminology, 48(2), pp. 171–189.
15. Hale, M. (1810). The History of the Pleas of the Crown: Vol. II. London.
16. Hay, D. (1983). Controlling the English Prosecutor. Osgoode Hall Law Journal, 21(2), pp. 165–186.
17. Herrup, C. (1987). The Common Peace: Participation and the Criminal Law in Seventeenth-century England. Cambridge.
18. Howard, P. (1931). Criminal Justice in England: A Study in Law Administration. London.
19. Langbein, J. H. (1999). The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors. The Cambridge Law Journal, 58(2), pp. 314–365.
20. Turner, R. (1975). Roman Law in England before the Time of Bracton. Journal of British Studies, 15(1), pp. 1–25.
21. van Caenegem, R. (1988). The Birth of the English Common Law. Cambridge.