The right to bring a private criminal prosecution, rather than a civil claim for damages, is exceptional, even in common law jurisdictions; the majority of jurisdictions around the world treat the criminal justice system as a function of the state.
Yet private prosecutions have deep roots in the common law system: England and Wales retain this right, as do Canada and some other common law jurisdictions.
By allowing prosecution when the state chooses not to act, private prosecution may offer opportunities to confront corruption, when the criminal actor is part of the state, and state actors may be reluctant to act.
In this paper, Tamlyn Edmonds and David Jugnarain of law firm Edmonds Marshall McMahon set out the history of private prosecutions in England and Wales, and explain the relationship between private and public prosecutions. They also highlight some notable examples of private prosecution by activist groups, and outline both the possible benefits, and the risks, of pursuing this approach.
This is the latest paper in a series developed from a day of discussions on the worldwide legal fight against high-level corruption organized by the Justice Initiative and Oxford University’s Institute for Ethics, Law and Armed Conflict, held in June 2014.