(B) Practical disincentives for private prosecution

Moreover, in English law there are two major practical disincentives on recourse to criminal proceedings by a private person, even where such a possibility is legally possible. In French law, the victim of a crime as partie civile is able to take advantage of the investigative powers of the juge d’instruction and this constitutes a considerable advantage over the investigative process available in the civil courts.¹⁶⁴ By contrast, an English private prosecutor neither possesses nor can he invoke any special powers of investigation, search or seizure. Moreover, the prosecution (private or otherwise) cannot obtain an order for the disclosure of documents by a defendant relevant to the proceedings of the sort available in civil proceedings, since there is in general no obligation on the accused to disclose prior to trial more than a written statement setting out in general terms the nature of his defence and the matters on which he takes issue with the prosecution:¹⁶⁵ ‘[t]he defence have no duty to disclose information on which they (p.423) do not intend to rely.’¹⁶⁶ A private prosecutor does not possess the considerable powers of investigation which the police or special statutory enforcement authorities possess, and does not even have the right to examine evidence taken by the relevant public authorities.¹⁶⁷ Finally, of course, in criminal proceedings an offence needs to be proven beyond reasonable doubt, whereas any civil claim need only be proved on the balance of probabilities.¹⁶⁸

A second and very important reason for use of the criminal route to compensation by the victims of crime in France is because it is cheaper and quicker than recourse through the civil courts, the relative cheapness stemming from the fact that a significant slice of the overall cost is always borne by the State, even for cases initiated by a victim contrary to the view of the ministère public.¹⁶⁹ In England, however, cost is a major practical disincentive against private prosecution.¹⁷⁰ First, legal aid is not available for private prosecutions.¹⁷¹ Secondly, even if a prosecution succeeds there is no right to the recovery of prosecution costs against the offender: the court has a discretion in the matter,¹⁷² though a Practice Note has indicated that ‘an order should be made where the court is satisfied that the offender…has the means or ability to pay’.¹⁷³ However, the Camelford Water case is a striking example of the risk which a prosecutor can face. There, the local authority prosecuted and obtained a conviction for public nuisance against the supplier of contaminated water after an 18-day trial in the Crown Court.¹⁷⁴ However, the judge awarded the local authority only £25,000 of the £145,000 costs which it had claimed,¹⁷⁵ perhaps because he accepted in part the defendants counsel’s submission that his client was the object of a witch-hunt.¹⁷⁶

Thirdly, where a person brings a private prosecution other than in any official capacity in respect of an indictable offence or in respect of a summary offence before the Divisional Court or the House of Lords, the court may order the payment out of central funds of such an amount which it considers reasonably sufficient to compensate him for any expenses properly incurred by him,¹⁷⁷ but this leaves out the prosecution of summary offences before a Magistrates’ Court.¹⁷⁸. Moreover, a private prosecutor, like any other party to criminal proceedings, runs the risk of being ordered to pay penal costs where another party to those proceedings incurs costs ‘as a result of [his] unnecessary or improper act or omission’.¹⁷⁹