Justice Select Committee Report Published – Safeguards in Private Prosecutions

Gavin Irwin explores the report’s key recommendations

On 7 July 2020, Alison Levitt QC gave evidence before the Justice Select Committee, on behalf of the Private Prosecutors’ Association, on safeguards in private prosecutions[1].  Separately, the 2 Hare Court Private Prosecutions’ Group made written representations to the Committee[2].

On 2 October 2020, the Committee published its report[3].

The key take-aways are as follows:

The Current State of Private Prosecutions

1. A proactive approach to examining the effectiveness of the regulation of this area of the criminal justice system is justified by anecdotal evidence suggesting that the number of private prosecutions has sharply increased.
2. The current system enables corporate victims of crime to pursue justice when public authorities decline to intervene – that is a strength – however, in a modern criminal justice system, whether an offence is prosecuted or not should not depend on whether the victim has the financial resources to conduct a prosecution.
3. The Government must ensure that the rise in the number of private prosecutions does not result in the development of a parallel system where the public interest, accountability and transparency are secondary to private interests.

Funding

4. The Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds.

Costs

5. A private prosecutors’ recoverable costs should be capped at legal aid rates.
6. There should be no disparity between the claims that can be made from central funds by prosecutors and defendants.
7. Defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS.

Safeguards

8. The Government should strengthen the safeguards that regulate private prosecutions to ensure that any organisation that conducts a substantial number of prosecutions is subject to the same regulatory standards and expectations of accountability and transparency as public prosecutors.
9. The Government should consider enacting a binding code of standards, enforced by a regulator, that applies to all private prosecutors and investigators.
10. HMCTS should establish a central register of all private prosecutions in England and Wales.
11. HMCTS should ensure that the CPS is notified when a private prosecution is initiated. The notification process should be integrated into the structure of the central register of private prosecutions.
12. Every defendant who is privately prosecuted should be informed of his or her right to seek a review from the CPS – the Criminal Procedure Rules should be amended accordingly.
13. If the police are involved in a private prosecution, the police must inform the defendant that they are to be prosecuted by a body other than the CPS and that they have a right to request a review.
14. Organisations which bring significant numbers of private prosecutions should be regulated and subject to inspections. If any such organisation is found to be misusing the power to bring private prosecutions, it should be treated as a vexatious litigant.

Commentary

If adopted, these recommendations will considerably alter the private prosecutions’ landscape.  Those in relation to safeguards and the collation of data to better understand trends may be universally welcomed, however, those in relation to costs may be so far-reaching as to make current business models for many organisations undertaking private prosecutions unworkable.

In recent years, private prosecutors have been less likely to recover their costs from central funds[4] (and certainly not in the full sum), nor have they been able to recover their costs in the full sum against the defendant[5].

Bringing a private prosecution requires deep pockets – the private prosecutor must fund the costs of investigating and, in due course, bringing the case in court.  Although it is settled law that,

“in a private prosecution it is not a necessary requirement that, for costs to be recovered, they must correspond precisely with what may be claimed and allowed in the case of a public prosecution.  But at the same time it is wrong to allow a very significant disparity between the two. That, in truth, is a reflection of considerations of proportionality”[6],

without the possibility of recovering at least a significant proportion of those costs – the difference between ‘legal aid rates’ and the actual cost of bringing such proceedings is profound – capping recoverable costs at legal aid rates is likely to deter even well-resourced private prosecutors from litigating, at a time when the limited resources applied to criminal prosecutions by the state are ever-dwindling.

There is a real risk that, rather than retaining private prosecutions as a useful adjunct to the state’s capacity to prosecute, where appropriate safeguards are in place, the Committee’s recommendations will have the reverse effect and stymy the prosecution of significant numbers of fraud cases.  As a result, redress for victims of fraud, and the public more generally, will become even more distant than currently.

[1] https://parliamentlive.tv/event/index/dea89063-d8d6-4a81-a865-41e2da410de4

[2] https://committees.parliament.uk/writtenevidence/8235/html/

[3] https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/497/49702.htm

[4] under section 17 of the Prosecution of Offences Act 1985

[5] under section 18 of the Prosecution of Offences Act 1985

[6] D Limited v A and Others [2017] EWCA Crim 1604