MoJ Launches Consultation Paper on Oversight and Regulation of Private Prosecutors

Ever since the report and recommendations of the Justice Select Committee in 2020 in respect of private prosecutions, some type of reform has been anticipated. That anticipation has been amplified by the ongoing revelation in the Horizon IT Inquiry of the extent of the miscarriages of justice resulting from the misuse by the Post Office of the right to bring private prosecutions.

A clear picture of what that reform might look like was provided yesterday following the announcement by the MoJ of an open consultation on the “Oversight and regulation of private prosecutors in the criminal justice system”.

The press release[1] accompanying the launch of the consultation sets the tone: “Tough controls considered to regulate private prosecutors”.

In the foreword to the consultation itself[2], Sarah Sackman KC MP, the Minister of State for Courts and Legal Services and erstwhile Solicitor General acknowledges the important role in the justice system played by private prosecutions brought by individuals or companies, before focussing on the recent increased and justified scrutiny of private prosecutors as a result of some “having been found to have acted unlawfully, improperly and well below the standards the public expects.”

The Minister cites the Post Office scandal directly, as well as the thousands of convictions for railway fare evasion offences that were declared void in 2024 following the unlawful use of the Single Justice Procedure.

She observes that there is currently no coordinated oversight or scrutiny of the steps private prosecutors must take before commencing a prosecution, and no quality assurance processes to ensure that private prosecutors are taking proper account of the public interest in bringing a prosecution. The Minister states that the Government is clear that it must address these issues as a matter of urgency in order to prevent future failures.

The consultation is said to follow from the Government’s review of the 2020 Justice Select Committee recommendations. Having opened yesterday, it closes on 8^th May 2025.

The scope of the consultation – organisations, not individuals

Significantly, the consultation does not apply to individuals who bring private prosecutions on their own behalf. The paper states that the right of victims of crime to commence criminal proceedings provides an essential route to justice and it does not seek to curtail the ability of an individual to bring a prosecution on their own behalf in any way.

For the purposes of the consultation, “Private prosecutors” are defined as all bodies that bring criminal prosecutions other than those organisations (“Criminal justice agencies”) who have the primary purpose of investigating or prosecuting criminal offences on behalf of the Crown (CPS, Police, SFO, NCA)[3]. The consultation therefore includes public bodies that are authorised to prosecute specific offences under specific legislation (e.g. Ofgem and local authorities), and those authorised as “relevant prosecutors” to bring prosecutions through the Single Justice Procedure. The key distinction is that the “Criminal justice agencies” are already subject to statutory inspection and must apply the Code for Crown Prosecutors in bringing prosecutions.

Areas of consultation

1.    Consistency of Standards and Accountability

The paper highlights the following matters:

• The absence of a compulsory code of conduct for private prosecutors (the Code for Private Prosecutors issued by the Private Prosecutors’ Association is acknowledged and welcomed, but it is noted that it is a voluntary code).
• The absence of a requirement for private prosecutors to satisfy the Full Code test as to both evidential sufficiency and the public interest. It is noted that the power of the DPP to take over and stop a private prosecution if the test is not satisfied is subject to referral being made, as the CPS is not automatically notified of a private prosecution commencing.
• The importance of the separation of the functions of investigation, the decision to prosecute, and the prosecution, which may be more difficult to ensure in a private prosecution.
• The absence of mandatory scrutiny and inspection of private prosecutors.

The consultation therefore seeks views on the following declared aims and linked topics:

• A binding code for private prosecutors requiring that prosecutions are conducted in a proportionate way and for a clear and valid reason.
  • To whom it should apply – should it only be for all private prosecutors irrespective of size, and should it apply to public and private bodies equally?
  • What requirements should be included, e.g. separation of functions, application of evidential test and public interest test?
  • Are there further regulations or requirements that should be placed upon private prosecutors owing to their different features and the fact that the investigation and prosecution of offences is not their sole or main purpose?
  • What is the best way to achieve enforcement of the code and scrutiny of prosecutors?
• Inspection
  • How could a system of inspection be used in a proportionate way?
  • To which private prosecutors should a mandatory system of inspection apply?
• Accreditation
  • How could a system of accreditation help to increase standards and accountability?
  • How should it be applied? Should any organisation wishing to bring a private prosecution be accredited, or should the use of an accredited legal representative be compulsory if the reimbursement of costs from public funds is to be sought?
  • Should accreditation be at organisational or individual level?
• Sanctions and consequences.
  • What consequences should fall from failing to meet the required standards, such as restrictions on the right to bring private prosecutions?

2.    Improving Safeguards to Justice in the Single Justice Procedure

The Single Justice Procedure is used to deal with minor summary-only offences for which a custodial disposal is not available. A single magistrate supported by a legal adviser reviews the case on the papers and disposes of the matter in private.

Around 65% of all cases in the magistrates’ courts are dealt with through the SJP. Around 35% of SJP cases are brought by private prosecutors. Although safeguards are built into the process (including the right to demand a court hearing, provide mitigation alongside a guilty plea, make a statutory declaration to revoke the proceedings if previously unaware of them, and an automatic right of appeal to the Crown Court), there have been cases where people were prosecuted where the mitigation they put forward demonstrates that it was not in the public interest to prosecute them.

The consultation seeks views on enhancing the safeguards within the SJP process and assuring its appropriate use by all prosecutors (this therefore applies to criminal justice agency prosecutors as well as private prosecutors using the SJP). In particular:

• Changes to better assure that SJP cases brought are in the public interest
  • This will include a requirement for all SJP prosecutors to have access to and to review the mitigation submitted by the defendant
• Allowing a period of time for a response to initial notification to provide details of the defendants’ circumstances before issuing an SJP Notice.
• A requirement to send a number of written notifications before issuing an SJP Notice to the defendant.
• Redesigning the SJP Notice to make it clearer and easier for the defendant to understand the process and their rights.

3.    Improving Transparency

The paper notes that greater transparency by the Post Office about the number of people being prosecuted for offences relying on the Horizon IT system may have resulted in miscarriages of justice being identified more quickly, or even being prevented.

Whilst there is an HMCTS register which details applications by private prosecutors for summonses, it is an internal document that does not meet the requirements for published statistics and does not include data for SJP prosecutions. There is no public central database on the number and type of private prosecutions, or duty on private prosecutors to publish such data.

The consultation paper observes that an increase in available data could help to show emerging trends, would allow greater scrutiny of private prosecutors, and would provide greater oversight of the criminal justice landscape, so as to identify resource or capacity issues in criminal justice agencies giving rise to an increase in private prosecutions in that area.

The consultation therefore seeks views on what data private prosecutors should be required to publish, and whether it should be publicly available. The data may include a qualitative assessment of their prosecutions and information about how they review and assess their own performance. Views are sought in particular on:

• Which, if any organisations bringing private prosecutions should be required to register with HMCTS before bringing a prosecution?
  • All organisations, only those bringing a certain number of prosecutions, or an alternative measure?
• Which, if any organisations bringing private prosecutions should be required to publish their own data on the prosecutions they bring?
  • What data should be provided (e.g. number, type of prosecutions per year, number of convictions, guilty pleas)?
• Should private prosecutors be required to assess their performance and audit their prosecutions?
  • Should such information be published?

Observations

The consultation paper gives a clear indication of the Government’s thinking on reform to the private prosecutions landscape following the recommendations of the Justice Select Committee.

Unsurprisingly, much of the paper’s focus reflects that committee’s recommendations.

The exclusion from the proposed reforms of private prosecutions brought by individuals is notable and confirms the Government’s acknowledgement that the right of an individual victim of crime to bring a prosecution is fundamental and should not be restricted.

Equally notable is the absence of any reference to changes to the right of a private prosecutor to recover costs. However, it would be unwise to assume that the absence of this discrete topic from the consultation is any indication that no reform is contemplated.

[1] https://www.gov.uk/government/news/tough-controls-considered-to-regulate-private-prosecutors

[2] https://www.gov.uk/government/consultations/oversight-and-regulation-of-private-prosecutors-in-the-criminal-justice-system/oversight-and-regulation-of-private-prosecutors-in-the-criminal-justice-system-consultation#:~:text=The%20Justice%20Select%20Committee%20(JSC)%20report%20into%20private%20prosecutions%20in,conducts%20a%20substantial%20number%20of

[3] The Service Prosecuting Authority is also excluded from the scope of the consultation.