Q&As

Can private prosecutions be brought in Scotland?

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Published on LexisPSL on 22/12/2020

The following Corporate Crime Q&A provides comprehensive and up to date legal information covering:

  • Can private prosecutions be brought in Scotland?
  • Who can bring them?
  • What’s the procedure?

Can private prosecutions be brought in Scotland?

Historically, the power of prosecution rested originally neither with the private party, nor the public prosecutor, but with the court (see Angus Mackintosh, per Lord Justice-Clerk (Moncrieff) [para 253]).

Scotland has, for many centuries, had a system of public prosecution in which the Lord Advocate is recognised as the prosecutor in the public interest. Whatever may have been the origin of these high powers in the Lord Advocate, he is now invested with them in the fullest and most unlimited extent so that his title to prosecute is universal (Hume, Commentaries on the law of Scotland, vol. ii., p.133).

It remains open to a private citizen to apply to the court for permission to bring a private prosecution by way of a Bill for Criminal Letters. However, the circumstances in which such permission may be granted have repeatedly been described as ‘exceptional’ and will only be granted in ‘very special circumstances’ (Stewart v Payne, [paras 85 and 87]).

Who can bring them?

To bring a private prosecution, an individual must show a wrong personal to themselves, from which they have suffered injury of a substantial nature beyond all others, giving them a special and peculiar interest in bringing proceedings. A wrong of a general and public

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