Widow rejects freed killer's late apology: Family of London teacher stabbed to death hopes to bring private prosecution against teenage attacker

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The Independent Online
THE WIDOW of Robert Osborne, the music teacher who was stabbed to death, is considering a private prosecution against the teenager who was acquitted of his murder.

Mrs Osborne, who says she no longer believes in British justice, hopes to start a fighting fund for the private action.

In an interview on Sky News, Diane Osborne said yesterday that charges of possessing an offensive weapon and of criminal damage might still be possible against Joseph Elliott, 19, of Streatham, south London.

Mr Elliott admitted stabbing Mr Osborne, 40, with a Swiss army knife after the teacher confronted him with a hammer while he was slashing car tyres. But Mr Elliott claimed that he had acted in self-defence and was cleared of murder and manslaughter by an Old Bailey jury on Tuesday.

It has emerged that Mr Elliott was in breach of a probation order, after being convicted of burglary, when he was involved in the incident that led to Mr Osborne's death. A warrant for his arrest had been issued three months before, when he broke contact with probation officers.

Mrs Osborne was also interviewed on GMTV, an hour after Mr Elliott appeared on the same station, when he apologised for the first time. Mrs Osborne, accompanied by her children, Lisa and Justin, said: 'It's taken him two days to say sorry. He lives a few hundred yards from my home, he went out drinking that night, he didn't say sorry then. I think he's only saying sorry because of the pressure on him.'

Legal experts are doubtful about the chances of a successful private prosecution. Such actions are rare, and success actions are even rarer.

To bring a private prosecution, a person has to file a complaint with a magistrates' court. If it is accepted, the magistrates issue a summons and the accused has to come before the court to answer the complaint. Depending on the charge, magistrates can then deal with the case, commit it for trial in the Crown Court or dismiss it.

The Crown Prosecution Service has the power to step in at any stage and take over prosecuting or drop the case by offering no evidence. There is no legal aid for someone bringing a private criminal prosecution, although the defendant can claim assistance.

Tony Edwards, of the Law Society's criminal law committee, said Mrs Osborne could bring charges for possession of an offensive weapon only if the Director of Public Prosecutions had already failed to consider the charge. She would also have to prove that Mr Elliott had intended to cause injury with the knife he was carrying. The DPP would probably intervene on the grounds that the jury's decision to clear Mr Elliott of murder ruled out intent.

With charges of criminal damage, Mrs Osborne might be on stronger ground. Intervention might then be problematic for the DPP. However, such offences carry a maximum three-month prison sentence. Mr Edwards said that a private prosecution confined to a magistrates' court, possibly with charges of criminal damage, could cost Mrs Osborne less than pounds 1,000.

Professor Leonard Leigh, a criminal law expert at the London School of Economics, said that once a person had been acquitted of murder, any other charges involving the same victim in the same set of circumstances would be barred by the 'double jeopardy' rule.

Mrs Osborne could sue in the civil courts for damages, but even if she won, it could prove meaningless. 'If the other side is broke, there isn't much you can do about it,' he said.

Probation officers said Mr Elliott contacted them yesterday about fulfilling his outstanding probation order. After spending three months on remand over the murder charge, there would be no penalty for his breach of probation, David Hill, a senior officer said.