Thursday, 24 March 2016

Lessons from a Private Prosecution (1) The Criminal Justice System

I have learnt much from my private prosecution of a motorist whom I accused of dangerous driving but who was acquitted of that charge by a jury at Isleworth Crown Court on 9th March.  I will endeavor to share what I have learnt in case it is of benefit to others.

I could write a book on it but nobody would read it.  To avoid a very long blog I intend to cover aspects of the case in a series of posts.  I start with some general reflections on the criminal justice system.

The first priority of the English criminal justice process is to safeguard the rights of the accused.  This has to be correct.  It has long been said that the conviction of an innocent is many orders of magnitude worse than the acquittal of the guilty and the burden and standard of proof required of a prosecutor is commensurately very high.  It follows that a prosecutor cannot complain of unfairness.  The prosecution must reveal everything at an early stage.  A Defendant may hold his cards very close to his chest and may choose what he wishes to reveal and when.  The prosecution must prove a case so that the trier of fact is sure of guilt.  A Defendant need prove nothing.

It follows of course that an acquittal proves nothing.  An acquitted Defendant has not been 'proved innocent' and nor has a prosecutor who does not secure a conviction been proved wrong.

I am used to civil proceedings (claims for damages) where it is a stated and important objective that the parties are on an equal footing and the tribunal will determine disputed questions of fact on the balance of probabilities.  It is all very different in the criminal courts and we do not punish people because they are probably guilty.

As an adherent to the rule of law I have already indicated that I respect the jury verdict.  Nothing I say in this series of posts should be taken to detract from that.  Obviously, though, I cannot be expected to agree with it.  I remain fortunate that I was not injured.  Many many worse things could have happened to me (and indeed have happened to me) than failing to secure a conviction in this case and my disappointment is not of course remotely comparable to the angst experienced by those who have sustained serious injury or the death of loved ones as a consequence of criminally bad driving.

I therefore have no regrets.  I will consider whether there is anything I might have done differently in following posts.  However my general viewpoint is that there was sufficient evidence to place before a jury and that the public interest demands that something be done about the minority of drivers who terrorise cyclists or would be cyclists off the road.  It would have been far preferable had the Metropolitan Police chosen to take the issue more seriously but, as with all cases of this sort, they did not.  The amount of reliance placed by the Defence on the (strictly speaking inadmissible) police view is something I had not adequately anticipated.  Juries do not give reasons but I agree with other observers at the trial that this was likely to have been a major factor.

I continue to believe that there is a strong case for private prosecutions certainly where the police fail to act.  Failure of action by the CPS is less of an issue since there is an effective right of review which should be used in preference to a private prosecution.  It would make a lot of sense for victims to have an effective right of review by a CPS lawyer of a police decision to take no action but unhappily this is not something that is in place.  I do not mind attracting opprobrium in the columns of tabloid newspapers.  On the contrary even a 'failed' prosecution may have some deterrent effect.  Nobody, however convinced of their own innocence, would wish to be dragged through a 3 day Crown Court trial and driving in such a way that you cannot reasonably be accused of dangerous driving is a good way to avoid this.  One tabloid has speculated about the risk of other cyclists following my example and I hope in suitable cases that they will.  Obviously I would have preferred the greater deterrent effect of a conviction but that does not mean that the process was not worthwhile.

In subsequent posts I plan to consider:
2.  The factual evidence.  What is required?  What type of incident?
3. Was I the right complainant?
4.  Reporting to the police.
5. The difficulties presented by the requirement of a Notice of Intended Prosecution.
6. Starting a prosecution by laying an information before magistrates and deciding with what offences to charge.
7. Initial hearings prior to committal.
8. Committal for trial.
9. Bad character evidence.
10. Dealing with the safeguards that prevent unsuitable prosecutions reaching trial.
11. Expert evidence.
12. Trial.
13. Why I believe it is reasonable even in times of austerity for the state to contribute towards the costs of an unsuccessful but properly brought prosecution.

If I have missed anything out that anyone considers I might cover in addition let me know.


  1. Martin,
    Thanks for providing follow up posts on your experience - I am very sure many would be interested in a book, though wonder if you would have time to write it! I look forward to reading each article.
    I have been officer in the case for criminal cases (no experience of road traffic cases I should add) and find your thoughts very interesting. I think many victims come away feeling that the ball is very much in the defence's court (no pun intended), and the contents of the first few paragraphs you have written is something I have to often remind them.
    It may come as no surprise to someone who has experienced jury service, but the jury are often in and out of court during a trial and are deliberately sheltered from hearing any material that could prejudice their view on the case. The result of that is a case with a lot of compelling material can get stripped right down to the bare bones with respect to evidence that is actually put before a jury - particularly with regards to bad character. So one can walk away from a trial feeling the jury has only heard half of the case; for the reason that any conviction is a secure one.

  2. Point 14) Responsibility for evaluation of standard of driving.

    When the judge sums up and the jury are sent out to decide whether the D's standard of driving fell below the appropriate level, who sets that standard: the judge, or the jury?

    I.e., for the former, one would expect the judge in his/her directions to give tightly defined boundaries, e.g., 'If the D drove closer than 1m the law says that is careless. If you are sure this is the case you must find the D guilty.'

    And for the latter, the judge would say 'You must decide if you are sure the D's standard of driving fell below this level. If so, you must find the D guilty.'

    I don't approve of the latter kind of direction; generously one might say it's a question of secondary fact or of mixed fact and law but to me it gives the law to the jury.

    If this turns out to be the case, surely we need a more tightly defined law: safe distances at given speeds to reserve the law to the judge.

  3. The present situation is the latter one. I would expect, although he has not said so, that part of what Martin is doing is trying to point out that the law is inadequately drafted, thus permitting juries to acquit on the basis that "I wouldn't like to be done for dangerous driving for doing that", which one rather suspects is why juries tend to acquit in cases like this, and why prosecutors and police tend not to bring cases like this.

  4. Martin, you say that even a failed prosecution has some deterrent effect. You almost seem to suggest that other people should be encouraged to prosecute, despite the low expectation of success. I understand why you say this. But it seems to me that deliberately entering into a prosecution with little chance of success is an abuse of process. I know you feel you have right on your side here, and I agree with you. But very rich people prosecuting critics for libel, thoroughly expecting to lose, for the deterrent effect it has, is a terrible abuse of process and we should deprecate it and the like, and not really import their techniques, even if we feel we have right on our side.

    1. No, I would never encourage a prosecution that lacked merit and there are a number of safeguards that would anyway prevent that from happening. I simply make the point that outraged readers of tabloids may now think about the way in which they drive around cyclists.