Costs – further implications in private prosecutions

Private Prosecutions Blog: Tuesday 9^th March 2021

The Government’s response[1] to the Justice Select Committee Report on Safeguards in Public Prosecutions[2] was published last week.  The Justice Select Committee Report itself was published on 2 October 2020 and explored in depth by Gavin Irwin in a previous publication here.

The Government’s headline response to the Committee’s report was as follows:

“The Government welcomes the Committee’s conclusion that ‘existing safeguards in place to regulate private prosecutions are effective at filtering out weak claims’, and that ‘the judicial process that applies to all prosecutions ensures that private prosecutions are rigorously tested’.  We have taken time to consider the conclusions and recommendations set out in the report, and have included our detailed responses in the annex.”

Of particular interest to those practising in this field will be the Government’s response to the Committee’s recommendations on costs, in which the following four points were made:

“We agree with the Committee that the present arrangements for funding private prosecutions are inequitable as between prosecutors and defendants, and do not always represent a cost-effective use of public money. 

We agree, in particular, that the costs recoverable from central funds by a private prosecutor should be limited in the same way that costs so recoverable by an acquitted defendant already are, by being capped at legal aid rates.  This will require an amendment of the existing legislation. 

We are also minded to agree that costs recoverable by a private prosecutor from a convicted defendant should be limited, either by being capped at legal aid rates or by reference to what the CPS would have sought, but we wish to consult further on this. 

We also intend to reflect further, and if appropriate consult, on whether there should be a wider discretion to reduce or withhold payment of costs from central funds in the event of an acquittal.”

Comment

The Government’s stated intention to amend existing legislation to cap costs recoverable by a private prosecutor from central funds at legal aid rates will surely prove to be a deterrent to many individuals and organisations contemplating bringing private prosecutions.  The costs of such proceedings can be profound and the difference between ‘legal aid rates’ and the actual costs of bringing such proceedings will often be substantial.

Moreover, the Government’s indication that further reforms may follow to limit the costs recoverable by a private prosecutor from a convicted defendant either to legal aid rates or by reference to what the CPS would have sought, and, to reflect further on whether there should be a wider discretion to reduce or withhold payments of costs from central funds entirely in the event of an acquittal, are further deterrents to all potential private prosecutors.

The Government’s observation, therefore, “that since not every offence worthy of prosecution can be prosecuted by the CPS, SFO or other appropriate public authority, there are circumstances where prosecutions brought by victims of crime themselves (whether corporate or individual) still have a valuable part to play” has an especially hollow ring to it if the costs reforms under consideration are implemented.

Brian O’Neill QC and Neelam Gomersall

[1] https://committees.parliament.uk/publications/4916/documents/49317/default/

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