The Gender Recognition Act 2004 and s.22 Privacy
Is there a time limit within which to bring a prosecution to the Magistrates, under s.22 of the GRA 2004?
Prosecutions under s.22 of the Gender Recognition Act 2004 and Time Limits
If someone has disclosed that you have a Gender Recognition certificate, or information that would lead a third party to believe that you have gender recognition certificate, or a new birth certificate because you are trans , then they have committed a criminal offence and you can report it to the police and expect the police to pursue the possibility of a hearing by the Magistrates Court, and a possible conviction .
However, to date, 6 years after the Gender Recognition Act came into force, there have been no successful convictions - in fact there has been nobody who has appeared before the Magistrates charged with this offence. There are 2 key problems:
- There is only 6 months, after the offence, in which the police must put before the evidence before a magistrate.
Frequently individuals do not know immediately that an offence has taken place, they may not hear about it for several months.
Police Officers find it hard to think of it as an offence; they are looking for gun shot or knife wounds, not someone saying something out of place.
According to Section 127 Magistrates' Court Act 1980 states that for all summary offences, which includes offences under s22 of the Gender Recognition Act 2004, the information for a prosecution must be laid within six calendar months of the commission of the offence, except where any other Act expressly provides otherwise.
The following points need to be borne in mind:
are there any delays allowed: In R -v- Pontypridd Juvenile Court ex p B  CLR 842 it was held that an information could be laid by being input into a terminal at a police station of a computer system which was linked to the court, even though it was not printed out at the court end until later.
In computing the limitation period the day on which the offence was committed is not included.
So long as the information is laid within six months, the issue and service of the summons and the subsequent determination may all occur outside that period.
Laying information within the six months' time limit before deciding whether or not to prosecute may result in the proceedings being stayed as an abuse of process; [R -v- Brentford Magistrates' Court ex parte Wong  1 All ER 884].
The six months' time limit applies to most summary offences, but statutory exceptions do occur. Most of these are concerned with the Road Traffic Offenders Act 1988. These allow for the time to start running not from the date of the offence but “from the date on which evidence sufficient the opinion of the prosecutor to warrant the proceedings came to his knowledge.” However, no proceedings may be brought more than three years after the commission of the offence.
PFC believes the 6 month time limit is generally an unjust fetter in cases brought under the Gender Recognition Act 2004. All too often, we see the police taking too long to investigate the case. It also bars justice form those people who discover the disclosure has taken place towards the end of, or after, the 6 month period.
However, s.22 offences are essentially strict liability offences, except for those areas of exception contained within s.22. Thus, like parking on a double yellow line, all the prosecution (public or private) has to provide is clear evidence that the offence has occurred e.g. a letter or hospital notes etc. and you can link it directly to the offender (most tend to sign such notes) they must be convicted. In these circumstances you might wish to commence a Private Prosecution, as the evidential burden is so low i.e. what you have to show for a successful conviction, but the time limits still have to be adhered to.
Can I bring a Private Prosecution under s.22 of the Gender Recognition Act 2004?
If it looks like the Police will fail to start a prosecution under a s.22 offence within 6 months you can commence a private prosecution. The courts prefer you not to do this, but you are able to do it so long as you have very clear and good evidence, which the offender cannot deny.
There is high authority that a private prosecution is a valuable safeguard against misbehaviour by official prosecuting authorities. [Lord Diplock in Gouriet v Post Office Workers  AC 435 at 497 H to 498 B]
Bringing a Private Prosecution
A Private Prosecution is when an ordinary person who is the victim of a crime, or acting on behalf of a victim of crime, approaches a Court to ask that a Justice of the Peace (a magistrate) or a District Judge, issue a summons for the alleged 'guilty party' to address the question of the innocence or guilt in court.
A Trans Person who is either
Applying for a Gender Recognition certificate, or
Who has been awarded a Gender Recognition certificate,
may request a summons from the Magistrates Court, to be issued if:
a person, X, who has obtained the knowledge in an official capacity, does something unlawful to disclose the transgender status of the trans person, and
the trans person has good evidence of who X is, and
the trans person has already approached the police , but
the police are being reticent in either investigating the matter or in issuing the summons within a timely manner, and
it looks like a summons will not be issued by the police within the 6 month period required for prosecution by the magistrates court.
However, the Magistrates are
entitled to consider all of the facts of the case before
using their discretionary power to issue the summons, and
the magistrates may choose not to do so, when they feel the circumstances do not warrant the summons because it is a hopeless case. (see below the case of Barry v Birmingham Magistrates Court)
Barry v Birmingham Magistrates' Court  EWHC 2571 (Admin) (2 October 2009)M
This was a claim from a father's rights campaigner, B, who had sought a judicial review, having claimed that the decision of a District Judge, who had refused to issue a summons against his ex-wife, was incorrect.
The District Judge who had refused to issue the summons, had suggested in court that it is a requirement that the person take the matter first to the police (which B had not done)
B advanced his arguments clearly, skilfully, and with moderation in the Appeal court and won his case.
Lord Widgery, in the Appeal Court, found for B. This is what Lord Widgery said:
The District Judge was wrong in law.
There is no requirement for a person seeking to have a summons issued to approach the police first.
A person can approach a member of the Judiciary (incl. a Justice of the Peace at the Magistrates Court) directly and ask them to issue a summons.
In making a decision as to whether to issue a summons, a Justice has discretion to issue the summons him/herself, however,
This discretion is not without some limits.
As Lord Widgery said, the magistrate:
"should consider the whole of the relevant circumstances" and "must be able to inform himself of all relevant facts." [quoting from R v West London Metropolitan Stipendiary Magistrate  1 WLR 933. At pages 935 H to 936 B]
What can a Relevant Circumstance be?
Lord Widgery went on to say that in any particular case:
Whether (or not) a person has approached the police to seek a summons, may be a relevant circumstance.
The Justice or District Judge may find that if the police have failed to proceed in a case, that could demonstrate that it the case is hopeless and unlikely to succeed. As such
The Justice or District Judge may not issue a summons in those circumstances.
PFC has found that as the evidence of unlawful disclosure is generally straightforward, in prosecutions, under s.22 of the Gender Recognition Act 2004, the cases would be anything but hopeless cases.
More recently, in another case, the House of Lords (now the Supreme Court) expressed greater scepticism about private prosecutions. In Jones v Whalley  UKHL 41,  1 AC 63, 90, Jones was seeing the judicial review of the decision of a District judge who had refused to commence proceedings in a private prosecution. In the House of Lords, Lord Rodger said:
"Nowadays public prosecutions are the rule. So, usually, the court will be concerned to prevent its process being misused by a public prosecutor. But, in times gone by, when private prosecutions were the rule, the court must have had the power to guard against the corresponding danger of its process being misused by a private prosecutor." [Jones v Whalley, para 24]
However, despite Lord Rodger's reticence in the case, the Lords, overall, held for Jones had clearly made out his case. The district judge had breached principles for public law, and as such, the judicial review was granted to Jones. The matter was sent back to be considered again by the magistrate
Conclusion: Bringing a private prosecution is not easy, and takes up an immense amount of energy and time. But, if the police will not adequately investigate, or issue a summons for, the unlawful disclosure of your status then if you have very good evidence including details of the disclosure, and the identity of the person who made the disclosure, it is well worth considering private prosecution, if you can get no other satisfaction of your complaint.
Private prosecutions are not easy to bring but on many occasions the police do eventually pick up the case once a private prosecution has been started.
But, you must ensure that the evidence must be clear, in hand, and straightforward, in order to avoid prosecution yourself as a vexatious litigant.