2 Hare Court Private Prosecution Newsflash

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…..read more here.

Gavin Irwin

MIRCHANDANI – some good news for Private Prosecutors

It is well established that private prosecutors may pursue confiscation proceedings in the Crown Court and that confiscation proceedings, as part of the sentencing process, are properly classified as part of the criminal proceedings. As such, if successful, a private prosecutor can expect to recover from central funds costs incurred in such proceedings[1], under s.17 of the Prosecution of Offences Act 1985, which, as amended, provides that a court may award such costs in “any” proceedings “in respect of an indictable offence”; and, in any proceedings before a Divisional Court of the QBD or the Supreme Court “in respect of a summary offence”.

The question, whether a private prosecutor can recover costs for enforcement proceedings in respect of confiscation proceedings was, however, answered in the negative in Re Somaia[2] in which the Court concluded that although a private prosecutor may apply for a receiver to be appointed in respect of the defendant’s assets, he cannot recover from central funds any costs incurred in doing so. Julia Faure Walker considered the implications of this decision in an article which can be found here[3] –  in essence, the Court concluded that such proceedings are civil proceedings, and, therefore, there was no power to award costs from central funds.

The appellant appealed to the Court of Appeal[4] arguing that while enforcement proceedings were civil proceedings and governed by civil procedural law; if it was intended that an award under s.17 could only be made in criminal proceedings then s.17 could and would have so provided. The appellant argued that as the confiscation proceedings were criminal proceedings as part of the overall sentencing process it must follow that enforcement proceedings, designed to give effect to the confiscation order, were likewise “in respect of” an indictable offence and so fell within s.17.

In a judgement, handed down this week, the Court of Appeal considered whether…..read more here.

Fiona Robertson