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egerico
10-03-2009, 22:24 PM
Has anybody ever considered bringing private criminal proceedings for dishonesty against a seriously defaulting tenant?

Does anybody think this could be viable?

agent46
10-03-2009, 22:33 PM
A LL cannot ordinarily bring criminal proceedings against a tenant. Private prosecutions are possible in theory at least, but you would need to obtain the permission of either the Director of Public Prosecutions or the Attorney General. Private prosecutions are very rare.

Presuming you are not going to undertake such an enterprise, you would need to persuade the Police to arrest and charge, and then they would need to persuade the CPS to mount a prosecution. This is very unlikely to happen because (a) they will tell you "It's a civil matter sir. Evenin' all", and (b) due to the difficulty in proving beyond reasonable doubt an intent to defraud.

Yorkie1
10-03-2009, 23:03 PM
It is true that private prosecutions are very rare, but technicallly for most offences you do not need the consent of the DPP / AG to commence one. However, the CPS may take over and discontinue any proceedings if they so wish, without your consent.

Proceedings may be started by way of summons rather than arrest and charge by the police.

The bottom line is whether there is sufficient evidence to prove beyond reasonable doubt all the elements of the offence which you have in mind including, as agent46 stated, what was in the person's mind as well as what they did.

mind the gap
10-03-2009, 23:06 PM
The bottom line is whether there is sufficient evidence to prove beyond reasonable doubt all the elements of the offence which you have in mind including, as agent46 stated, what was in the person's mind as well as what they did.

How do you know/prove what is/was in someone's mind? Seriously - I'm interested.

Preston
10-03-2009, 23:15 PM
How do you know/prove what is/was in someone's mind? Seriously - I'm interested.

I think that all is meant here is the requirement to prove criminal intent - mens rea - which is common to all criminal offences?

mind the gap
10-03-2009, 23:17 PM
I think that all is meant here is the requirement to prove criminal intent - mens rea - which is common to all criminal offences?


I understand that. I'm just interested to know how it is proved in court, as opposed to someone 'knowing someone else's mind' in a non-legal sense.

agent46
10-03-2009, 23:19 PM
How do you know/prove what is/was in someone's mind? Seriously - I'm interested.

Intention can be proved in a variety of ways, of which the primary means are confession, documentary evidence, inference through words and conduct, hearsay evidence of other witnesses (in some circumstances) and answers given by them and other witnesses in court under either examination in chief (by their own counsel) or in cross-examination (by opposing counsel).

Yorkie's post is correct. Consent from the DPP is only required in certain cases (I can't remember which ones) and the CPS can take over and stop a private prosecution if it fails the usual evidential and public interest tests applied by the CPS. Following the issue of a summons, the Mags' court can refer a PP to the CPS for review and it is at this stage they may step in.

Deception offences are triable "either way" (ie: the defendant can elect to have a jury trial), and most defendants who intend to plead not guilty would, I imagine, be advised to have a private prosecution heard before a jury. Not only do juries have a much higher acquittal rate than Mags (something like 45% against 15%) a jury trial would place great costs pressure on the private prosecutor.

mind the gap
10-03-2009, 23:27 PM
Thank you for that very clear explanation.

I asked partly because of that twerpy student tenant of ours who broke a window whilst drunk, then claimed he wasn't responsible because he hadn't intended to - he had, he said, no mens rea. Clearly he was responsible for paying for the window to be mended, and he may be correct in claiming that he did not intend to break it, but I have always wondered how you could prove that someone intended to do anything whilst drunk, perhaps a more serious crime like drink-driving? In what sense are they 'responsible', if they get into a car blind drunk and kill someone?

Terri
10-03-2009, 23:54 PM
I know some crimes are strict liability offences, like say speeding, whereby intent does not have to be proven - the act alone is enough, as long as it can be proven it was you committing the act of course.

With other offences such as drink-driving I assume it would be the case of proving that the person was aware they were too drunk to drive, that is proof of amount of alcohol in their blood and medical testimony as to how that would be reasonably expected to affect an individual and whether this would be physically obvious to the offender. Of course, with the amount of information available on drink-driving these days most people play it safe and don't drink at all, so I suppose it would have to be proven that the amount of alcohol played a major role in any incident that occured, and that the offender would have been aware that their judgement was impaired.

Intention itself is difficult, but I think you usually use the standard of a reasonable person. The alcohol may lead to a person being more reckless when doing something, but they still committed the act and as long as the result was foreseeable (such as, I want to reach something on a high shelf and because I am drunk I won't bother getting a chair but will just wobble the shelf, and then the shelf breaks) then the person would be held culpable.

agent46
11-03-2009, 00:10 AM
Thank you for that very clear explanation.

I asked partly because of that twerpy student tenant of ours who broke a window whilst drunk, then claimed he wasn't responsible because he hadn't intended to - he had, he said, no mens rea. Clearly he was responsible for paying for the window to be mended, and he may be correct in claiming that he did not intend to break it, but I have always wondered how you could prove that someone intended to do anything whilst drunk, perhaps a more serious crime like drink-driving? In what sense are they 'responsible', if they get into a car blind drunk and kill someone?

Aha. The whole issue of mens rea is a terminal brain-bender for LLB students - for instance one type of diabetes-related glycaemic episode can see you declared criminally insane and although you will be cleared of the offence, you may get locked up in a mental institution, whereas the other type of glycaemic episode will have you declared a "non-insane automaton" and cleared of the offence but allowed to go free.

Also, some offences only require the defendant to have been reckless, but the definition of recklessness in itself is not as simple as the everyday terminology. And with respect to the offence of criminal damage, the test for recklessness was, until recently, even further qualified.

Other offences such as drink driving are crimes of "strict liability" where no mens rea is required and so the prosecution only need to prove the facts (ie: driving a vehicle with a blood alcohol level in excess of the legal limit)

Intoxication can negate mens rea, but only in offences of specific intent where the intention to do something is actually part of the offence itself - a good example is causing GBH with intent to cause GBH contrary to the Offences Against the Person Act 1861 s.18.