The accession of King Charles III to the throne has caused standard precedents in criminal cases to be hastily rewritten, for prosecutions by the state are no longer taken in the name of the Queen but the King. Regina is replaced with Rex. Documents that used to have headings referring to the Queen now refer to the King. It obviously makes no substantive difference to the proceedings. Normally, it is the state that prosecutes and seeks to punish those who commit criminal offences.

It has always been open for citizens to initiate their own proceedings by way of private prosecutions. However, the chronic underfunding of all parts of the criminal justice system is leading to profound questions as to whether some are opting out of the state system entirely and pursuing their own form of what they see as justice. For example, Tristan Kirk, the courts correspondent for the London Evening Standard, tweeted on 24 September 2022 that: ‘Fortnum and Mason has stopped calling police to catch shoplifters. Instead, it hires private detectives to investigate, then brings private prosecutions. They've lost faith in police to do police work.’

This is a remarkable opt-out of the state system and will only further degrade the very purpose of the criminal justice system. Lady Justice’s blindfold, which represents the ideal that justice should be applied without regard to wealth, power or other status, has been ripped away. Now victims seek their own justice based on their ability to fund their own investigation and prosecution. The cuts to legal aid have already led the wealthy to believe that for expert representation, they need to pay privately. How can we forget Tory MP and Commons deputy speaker Nigel Evans indicating that he had regretted voting for the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (and, presumably, the subsequent substantial cuts to legal aid) as he then had to pay privately for his own defence in 2014 when he was falsely accused of rape? In 2018, he said: ‘You have no choice, when you’re accused of a crime and risk going to prison and losing everything, than to pay whatever you can to defend yourself.’ The circle is now complete. Neither wealthy victims nor wealthy defendants want to use state services.

The problem, as Evans belatedly acknowledged, is that many do not have a choice. The state sectors need to be funded sufficiently to make the criminal justice system work. However, even more insidious than the risk of a dual system is the increasing sense that those with power and money may not believe that they should be bound by the same criminal law as the rest of us. The increasing use of injunctions that prohibit behaviour that is already criminal is a case in point.

Over the past year, protests by groups such as Insulate Britain and Just Stop Oil have been met with a series of injunctions taken out by oil refineries and public authorities such as councils and the National Highways agency. Many of these protests are disruptive and would ordinarily have been dealt with by summary-only criminal offences such as obstruction of the highway or aggravated trespass. These are offences that, along with their maximum sentences, have been considered by parliament.

Some organisations clearly do not agree with the parliamentary limits so they have sought injunctions to prohibit that behaviour, as breaching such injunctions is regarded as contempt of court and leads to much more severe penalties than a conviction for a summary-only offence. Challenging an injunction at the time that it is granted is prohibitively expensive – particularly bearing in mind the KC and City law firms for whose fees and expenses you are liable if you are not successful. Therefore, by stealth and exploiting their financial advantage, they have almost created their own rules, the penalty for which will be imprisonment. And thus we have moved further towards the privatisation of the criminal justice system.

In a very different context, Lord Hoffmann famously remarked (in R v Jones and other appeals [2006] UKHL 16) on the special role of the state in ensuring a monopoly on the use of power:

There is a real risk that this dictum does not apply if you are wealthy enough to create your own rules and enforce them with your own lawyers. So much for parliament taking back control.