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Meet Alice. Bob has committed a crime against her and she commences a civil action against him, but the civil damages are minimal and Bob is unfazed and happy to pay them because continuing to commit these offences on a regular basis is a lucrative business model for him.

Alice would rather he get more than a relatively worthwhile-to-Bob slap-on-the-wrist, so she threatens to bring a private prosecution at magistrates, as the authorities are not interested in pursuing the matter. Bob, a very proper citizen, does not want a criminal record, and, knowing that he did indeed commit the offence, this finally gets his attention. Alice does not want to go through with the hassle of privately prosecuting Bob, but indeed has the option to.

Can she offer to settle with Bob, by refraining from every prosecuting him for the offence if he pays her an additional sum?

Would the situation further change if she hadn’t yet brought (or hadn’t yet won) any civil proceedings about the matter, but agrees to drop and desist from the private prosecution she is contemplating as part of the private/civil matter’s settlement?

Is this akin to police offering offenders’ the chance to accept a caution to avoid the court process, or various bodies issuing FPNs/CPNs, or is it more akin to a CPS official offering to drop a case in return for a bribe?

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Historically, all prosecutions were "private prosecutions", and the right of a private citizen to trigger a prosecution and conduct a criminal case is a legacy of this.

A key tenet of criminal law however is that the wrong is not against the prosecutor, but against the community as a whole. The prosecutor brings the case on behalf of the community at large, and the result of conviction is typically a punishment (not personal redress to the prosecutor).

Threatening to criminally prosecute someone, but offering instead to settle for a sum of money, does itself risk committing criminal offences like "blackmail".

Moreover, even if money were paid, it's unclear if the prosecutor could be bound by any "settlement".

A straightforward urging like "obey the law or I will report you to the police" is unlikely to fall foul. Nor would a demand by a victim for a purely restorative act "give me back my bike/repair my smashed window, or I will report you to the police".

But "give me money or I will report the rape/fraud you have committed to the police" would typically be regarded as a criminal blackmail.

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  • Thanks, although in this case it isn’ta question of reporting “to the police,” but Rather of laying the information so to speak at the magistrate’s court. Commented Sep 13, 2023 at 22:35
  • @Seekinganswers, if that's because the police wouldn't be interested in the matter or would be opposed to the prosecution, then that might go further against whether the demand for a "settlement" to avoid prosecution is reasonable. But otherwise there's nothing in it - we're talking either way of acts that will trigger a criminal justice process, and the demander and would-be prosecutor would be well advised not to be seen to treat it like a bargaining chip for private gain.
    – Steve
    Commented Sep 14, 2023 at 6:14
  • Before the Common Informers Act 1951, many laws had qui tam provisions that a large proportion of the penalty or fine could go to the informer, which made things more complicated. The USA has a similar issue with whistleblowers.
    – Henry
    Commented Sep 25, 2023 at 16:51
  • @Henry, fascinating. It seems Sir Edward Coke, a 17th century jurist, described the "common informer" as "viperous vermin", whilst Jonathan Swift, an 18th century cleric and author, describe them as "a detestable race of people"!
    – Steve
    Commented Sep 25, 2023 at 17:18

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