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On how to refer to the prosecution

The recent demise of the Crown has provided a reminder of the central importance of constitutional monarchy to the entire infrastructure of British justice. The Sovereign, as fons iustitiƦ, exercises judicial power via His1 Majesty’s judge. The Sovereign may fund the defence, through legal aid, and the defence may be carried out by His Majesty’s own counsel. More relevantly for these purposes, all prosecutions (including private ones) in England & Wales are conducted in the name of the King.

HHJ Durran’s sentencing remarks in the case of R v Turpin,2 have attracted attention largely because of the most unusual nature of the case.3 However, I wish to draw attention to a single stray noun used by Her Honour, ‘the Prosecution’. Her Honour employs this noun, with the capital-p, in lieu of the standard ‘the Crown’.

Stylistically, this is problem for several reasons. First, ‘the Prosecution’ is longer than ‘the Crown’ and arguably conveys less semantically. When adopting names for parties, concision is best. Anyway, there was no need to adopt a name, because there is already a name for this: ‘the Crown’. Unilaterally changing terminology is hardly ever a good idea, because language is a shared exercise amongst a community, not any one person’s individual fiefdom.

There is a very particular reason why changing ‘the Crown’ is especially ill-advised: the constitutional principle underlying the King’s role in remedying public wrongs. For authority on the centrality of this place in the English system, there is no better speaker than the man who quite literally wrote the book on public, Sir William Blackstone:4

First, as to the general nature of crimes and their punishment : the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown: so called, because the King, in whom centers the Majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public right belonging to that community, and is therefore in all cases the proper prosecutor for every public offence.

As Blackstone makes clear, the essence of the prosecution of crime under the English constitution is that the aggrieved party in each wrong against the communal order is His Majesty the King. This principle underlies so many basic aspects of the theoretical framework of Anglo-Cambrian justice. It reinforces prosecutorial independence. It shows to the public that a crime even against the least in society is treated as an offence against the highest authority. The power inherent in ht symbolism of the Crown reminds prosecutors that, when doing rightly, one need not fear,5 for the King’s Majesty is behind you. It also reminds us of the common bond of society; Blackstone himself recognises this with his prescient point that the King’s Majesty is majestic because it encompasses everyone. It is a visible guarantee of the famous provision in Magna Carta, cl 40 nulli vendemus, nulli negabimus aut differemus rectum vel justiciam.6 In other words, it really really does matter which word is used!

  1. It is still strange to use this word in reference to the Sovereign.↩︎

  2. Given at the Old Bailey on 21 Sep, 2022, and available at this link.↩︎

  3. Mr Turpin, then-aged 89, stabbed his blind wife in bed.↩︎

  4. 4 Bl Comm 2↩︎

  5. cf the Latin recto faciendo, neminem timeas↩︎

  6. English: ‘To none will we sell, to none will we deny, to none will we delay right or justice’.↩︎