Code for Private Prosecutors Published
The recent decision in Johnson  EWHC 1709 (Admin) has thrown private prosecutions into the spotlight as never before and so it is especially timely that the Private Prosecutors’ Association (‘PPA’) has published the first edition of the Code for Private Prosecutors (the Code’).
The Code is essential reading for those contemplating bringing any type of private criminal proceedings as well as for those instructed to act on their behalf. It attempts to complement the CPS Code for Crown Prosecutors by focusing on areas which experience suggests can present particular challenges for private prosecutors. Although voluntary, it is significant that all members of the PPA will abide by its terms and it will undoubtedly set the benchmark for best practice in this fast-growing area.
The Code provides detailed treatment of specific topics, from the mechanics of investigating and commencing a private prosecution through to the applicable costs regime, but its most important message and the one that pervades its different sections is that private prosecutors and their agents must act (and be seen to act) fairly and with integrity at all times. This familiar ‘minister of justice’ obligation is easy to state, but its importance cannot be over emphasised and the Code usefully highlights those areas where it might be most difficult for those engaged in a private prosecution to remain faithful to its strictures.
A few illustrative examples. Firstly, the relationship between the private prosecutor and their legal team will necessarily be somewhat different from that enjoyed in other contexts. The obligation on prosecutors to have regard to the public interest and to the fairness of proceedings overrides the particular interests of the client who is, of course, paying their fees. There may be occasions when information is withheld from the client prosecutor. Lawyers may withdraw or refuse to act if they consider the proceedings improper or vexatious. These points need to be clearly established and understood at the outset, lest expectations are raised which cannot properly be fulfilled.
Secondly, applications for summonses against putative defendants must only be made after a rigorous assessment of the merits of the case and in particular following the application of the CPS Full Code test. The private prosecutor must comply with their duty of candour, particularly as most applications are determined ex parte and without notice. The obligation to furnish the court with material and information potentially adverse to the grant of the summons can be conceptually difficult for a private prosecutor client to understand and comply with. The cardinal importance of this duty and the serious consequences of failing to fulfil it was spelt out only last year by Sweeney J in Kay  EWHC 1233 (Admin).
Thirdly, disclosure is a statutory responsibility for private prosecutors just as much as it is for those acting for the state. It is a considerable burden both in terms of time and cost. Private prosecutors are unlikely to have investigators to mirror the role of the police, but the duty to retain, record and reveal material will nevertheless need to be undertaken rigorously and methodically. Disclosure decisions need to be made impartially and with regard to the CPIA test, regardless of the potentially detrimental impact of revelation for the case. Specifically, the fact that material may attract Legal Professional Privilege cannot of itself prevent disclosure if it is deemed to meet the test, again, a point that private prosecutor clients must accept (however reluctantly).
In short, the new Code is an invaluable reference resource for all those involved in this area, including of course those defending such prosecutions. No doubt it will be added to and revised as it becomes used and established. What better material for your summer reading list?