Does the duty to disclose all material evidence in regards to a criminal charge apply in private prosecution?
The Supreme Court has upheld a recent trial Courts decision, in its decision dated 09.10.2019 holding that a private prosecutor is not obligated to grant access to the material evidence of a criminal case to the Accused.
What is a Private Prosecution?
Most criminal cases are investigated and initiated by the Republic of Cyprus. This means that it is the Police Department that investigates, and it is the Republic of Cyprus represented by Public Prosecutors, that initiates criminal procedures in Court. This is a public Prosecution.
However, the right of a citizen to institute criminal proceedings, that is, to prosecute, any person injuring him due to a criminal act is respected in Cyprus, by virtue of the common law. Private Prosecutions are fairly common in Cyprus, i.e. in cases of checks that are not honoured, or when a Judgment debtor does not comply with a Court Order. Instead of filing a complaint with the Police, a citizen has the ability to directly prosecute the wrongdoer at Court. Essentially this means, that said citizen will either represent himself, or appoint his/her advocate to act as a Private Prosecutor, against the Accused. This prosecution is private, as the Republic is not involved.
Apart from the advocate’s remuneration, there are not any specific rules as to private prosecution in Cyprus, nor a relevant legislation.
Main authority for private prosecutions is still Tofinis – v- Theocharides (1983), in which Pikis J, mentioned the following:
«At common law, the right to prosecute is private. A right to prosecute vests in every citizen injured by the criminal act. In its early stages of development, the law was vindicated by according due satisfaction to the victim of crime. In those days no distinction was drawn between criminal and tortuous acts. (….)Compared to the early days of the common law, the prosecution of crime is nowadays regarded as pre-eminently a public duty. But, as acknowledged in R. v. Metropolitan Police Commissioner, Ex parte Blackburn  1 All E.R. 763 (CA), the prosecution of crime cannot in law be regarded as the exclusive province of any authority. No public authority can rank above the law.
In my judgment, the right of a private prosecution symbolizes the common interest in law enforcement. Also, it earmarks the interest of victims of crime to
invoke the criminal arm of the law for their protection, a right not subordinated to the exercise of discretionary powers by a public authority, except in the face of clear language (…) The Criminal Procedure Law, Cap. 155, on the other hand, makes English Criminal Procedure Law applicable, unless inconsistent with special provisions of our law, whereas s.37 makes the commencement of criminal proceedings dependent on the approval of the charge without postulating emanation of the proceedings from any particular source as a precondition..»
Does the right to prosecute apply for all criminal offences?
The right is not absolute. Apart from the limited resources of a private prosecutor and the absence of powers to interrogate suspects, for more serious offences, falling within the exclusive jurisdiction of the Assize Court i.e. offences punishable with imprisonment exceeding 5 years, the Charge Sheet must be filed from or on behalf of the Attorney General of the Republic of Cyprus as per Criminal Procedure Law, Cap. 155.
In the UK, the matter of private prosecution is enshrined in law, by the Prosecution of Offences Act 1985. It is understood that Private Prosecutors in England and Whales have the duty to act as ministers of justice as per any Prosecutor appointed by the Crown. For this reason, Private Prosecutors should follow the Code for Crown Prosecutors, which is the Code for Public Prosecutors. Even though it was made clear, inter alia in R (Charleson) v Guildford Magistrates’ Court (2006), that a Private Prosecutor does not have to fully consider the above-mentioned Code, the disclosure duties of the material evidence of a criminal case to the Accused, as explained below, still apply.
The duty of disclosure of material evidence to the Accused
Article 7 of Criminal Procedure Law Cap.155 provides inter alia, than any person that is a suspect or has been serviced with a Charge, is entitled to be provided with all the material evidence that is relevant with his case, gathered in the stage of investigation of the criminal offence in question, in order to ensure the fair character of the proceedings and the preparation of the defence of the accused.
This provision has been introduced by amending Law 186(I)/2014 in order to harmonize with EU Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings.
According to Article 7 (2) of the Directive:
“Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or
accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence.”
The Case in Trial Court in Cyprus
In a recent case in Cyprus, the Defence applied for the disclosure of the material evidence in the context of a private prosecution first to the private prosecutor and then the Court relying on Article 7 of the Criminal Procedure Law Cap.155, but the trial Court refused to grant such an Order.
The Decision of the Supreme Court
The Defence challenged the above decision of trial Court, filing an Application in the Supreme Court of Cyprus, arguing inter alia, that there was a breach of Articles 12 and 30 of the Constitution of Cyprus, Article 7 of Cap.155 and Article 7 the above EU Directive.
On its decision dated 09.10.2019, the Supreme Court Judge agreed that a Private Prosecution is still a criminal case with the only difference being the person of the Prosecuting Authority. However, it dismissed the Application on the basis that the duty to disclose material evidence does not apply to Private Prosecutors, as they do not constitute “Competent Authorities”. Furthermore, the learned Judge noted that there is no legislative authority in case of a Private Prosecution imposing a duty of disclosure of the material evidence.
Both this decision and the decision of the trial Court are subject to Appeal.
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