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Tuesday, October 20, 1998 Published at 11:34 GMT 12:34 UK

Make prosecutions easier, say legal experts

The Law Commission wants to rid the system of anomalies

Proposals to make it easier for people to bring a private prosecution are being put forward by legal experts.

BBC Legal Affairs Correspondent Joshua Rozenburg: The Law Commission wants to sweep away restrictions
The Law Commission, which advises the government on reforming the law, recommended a streamlining of the requirement for ministers and top officials to authorise some criminal prosecutions.

The right to bring a private prosecution is seen as a fundamental constitutional safeguard against the failure of the authorities to begin criminal proceedings.

The Law Commission's report found that the system under which certain offences cannot be prosecuted without the prior consent of the Attorney General, the Solicitor General or the Director of Public Prosecutions (DPP), was "full of anomalies".

[ image: The Law Officers said there was a
The Law Officers said there was a "clear need" for rationalisation
The study said the consent requirement was an obstacle to the right to bring a private prosecution, and could cause delays and bring administrative burdens to criminal proceedings.

The Law Commission found numerous anomalies. For instance, under the 1968 Theft Act the DPP's consent was required to prosecute a victim's spouse for stealing or unlawfully damaging property, but it was not required to prosecute a spouse for obtaining property by deception, wounding, committing blackmail, rape or attempted murder.

The Commission has proposed a new regime to sweep away these anomalies, based on the fundamental principle that the right to bring a private prosecution fulfils a useful function and should only be circumscribed where there is good reason.

Consent needed

The report recommended that consent would still be justified:

Where the defendant could reasonably contend that prosecution would violate his or her rights under the European Convention on Human Rights;

Where an offence involves national security or has some "international element" such as related to international obligations of state, involving measures to combat terrorism, or having a bearing on international relations;

Where the offences create a high risk of people abusing the private prosecution system or where the proceedings will cause the defendant irreparable harm.

However this exception would not apply to doctors accused or recklessly causing a patient's death.

Although an unsuccessful private prosecution for manslaughter might damage a doctor's career, the Law Commission argues that it would be wrong to give any profession special protection.

Doctors disappointed

The Medical Protection Society said it was disappointed with the proposals.

The society's head of policy Dr Gerard Panting told BBC News 24 that the report had failed to acknowledge the particular difficulties doctors face.

"They're dealing with very complex situations, they're often dealing with situations where relatives are distraught following a sudden death, where there's been an unexpected complication," he said.

Dr Panting said it was important that doctors be given expert advice as to whether a particular case warrants prosecution before it goes ahead.

He suggested that the DPP or the Solicitor or Attorney Generals should look at a case before it is allowed to proceed.

"Doctors must be accountable but they must also be protected against misconceived prosecution," he added.

In a statement, the Law Officers' Department - representing the Attorney General John Morris QC and the Solicitor General Ross Cranston - welcomed the Law Commission's report.

"There is a clear need for the rationalisation of the consent provisions which attach to certain criminal offences.

"In particular, the separation of investigation and prosecution effected by the establishment in 1986 of the Crown Prosecution Service has substantially reduced the need for consent provisions," the Law Officers' Department said.