James Lewis, QC, looks at the single judgment that has left aggrieved people facing huge risks if they decide to exercise their given right to seek justice.

The right of an individual to mount a private prosecution was reaffirmed when Parliament passed the Prosecution of Offences Act 1985. It did so because inaction or reluctance by public bodies is far from uncommon. One needs to think only of the Stephen Lawrence case or of Hillsborough to realise how important this fail-safe has been in recent times.

However, this autumn a single judge in London may have dealt a death blow to this essential part of our constitution. 
 
It is difficult to imagine an example fitting more precisely what Parliament contemplated than the death of a son accompanied by a reluctance of any independent authority even to examine the circumstances of that death.

When what followed was the discovery of evidence that, at best, raised unanswered questions and, at worst, may have suggested malpractice, all the necessary ingredients existed to justify consideration of a private prosecution.

These are precisely the circumstances that I was asked to consider when the family of the late Michael Matthews, 22, a City financier from Fulham, southwest London, approached me in 2003 with the voluminous evidence pieced together after his death on Mount Everest in 1999.

An accomplished, yet relatively inexperienced, amateur climber, Michael Matthews had paid a good deal of money to join a commercial expedition and thus hoped to be guided safely, circumstances permitting, to the top of the world?s highest mountain, and back down again. Not quite your school trip, but with many similarities of an adventure coupled with duty and responsibility.

The expedition was fraught with problems, many connected with its reliance upon what we argued was second-hand, and decidedly third-rate, oxygen equipment. Nevertheless, Michael Matthews somehow made it to the top, the youngest Briton to do so. But, as he and his guide descended, the weather deteriorated badly and the two became separated. Michael Matthews died all alone on the mountain.

Having seen all the evidence, my opinion was, and remains, that there was a proper prosecution to be brought against three individuals and the company. Acting on that advice, a prosecution was started and in December 2005 a district judge in York considered the matter. He spent two days reading the evidence, concluded, as I did, that there was a prima facie case against all four defendants, and referred the case for trial to the Central Criminal Court. And so, last summer, the matter arrived at Southwark Crown Court. However, after three days of argument, the defendants were dismissed with a judgment which, to say the least, was perplexing. Sadly, that judgment cannot, in all practical terms, be appealed.

I accept that the prosecution could well have failed ultimately, but it appears that the dismissal judgment was enshrined around a quote by Eric Shipton, an early mountaineer (?. . . nothing but the most perfect conditions of weather and snow offers the slightest chance of success, and on that last lap of the climb no party is in a position to choose its day?). This had been written in 1944, nearly ten years before Everest was first climbed. This was a quote from a different age, and a very different spirit. It did not deal with the commercial reality that is Everest today. To add insult to injury, the bulk of the defendants? costs ? thought to run into many tens of thousands of pounds ? were then awarded against the prosecution.

This was even though I had given advice that this was a proper prosecution; even though my judgment had been reconfirmed by the district judge in York who had sent it for trial; and even though the Crown Prosecution Service, after careful consideration and applying its policy and criteria in such matters, had elected not to take over the prosecution and discontinue.

When Michael died on Everest his family may have reasonably expected that the authorities would deal with them sympathetically. All credit to the family, they have never sought sympathy, only an equitable outcome of their struggle, whatever that might have meant.

Demonstrably missing from all of this is equity. Far from this being good evidence of the litigious society in which we are now supposed to live, it is a demonstration of the huge risks inherent in tackling a private prosecution.

How many people will now be prepared to undertake such a venture ? with its inherent stress ? if they know that regardless of the advice upon which they have acted, and of the propriety of their actions, and irrespective of earlier approving decisions, they could be financially punished for exercising their rights as a citizen?

The author is a barrister at 3 Raymond Buildings