2020: The Year in Review
2020 was a year book ended by key judgments on costs in private prosecutions in which the courts were keen to emphasise the public interest in individuals and companies being able to pursue private prosecutions.
At the start of the year, in Fuseon Limited v Senior Courts Costs Office  EWHC 126 (Admin), Lane J ruled that it was reasonable in all the circumstances for a London firm, specialising in private prosecutions, to have been instructed by the prosecution, rather than using a local cheaper firm. Further, there was no legal justification for pinning the prosecutor’s recoverable costs to the level which would have been incurred by the CPS, although the use of such rates may be justified if the private prosecutor makes no attempt at the outset to involve the police and/or the CPS.
In July 2020, in R (on the application of Wollenberg) v Southwark Crown Court  EWHC 1915 (Admin), s.17 Prosecution of Offenders Act 1985 was considered and the following principle confirmed that costs should be paid from central funds (unless a lesser sum is appropriate) in a sum reasonably sufficient to compensate the prosecutor for any expenses properly incurred. There is a discretion to decline to make an order if for example the prosecution was started or continued unreasonably or there has been misconduct. The touchstone is objective reasonableness and proper conduct.
In October 2020 the issue of costs again arose in Murli Mirchandani v The Lord Chancellor  EWCA Civ, in which the Court of Appeal considered whether, on a true interpretation of s.17, a private prosecutor may recover out of central funds costs incurred in the enforcement of a confiscation order and costs which the prosecutor has been ordered to pay to a third party in the enforcement proceedings. Lord Justice Davis concluded that confiscation proceedings are part of the overall sentencing process and unquestionably “in respect of” an indictable offence. Enforcement proceedings designed to give effect to the confiscation order are thus also “proceedings in respect of an indictable offence.” An alternative interpretation would render confiscation orders “toothless” in the absence of adequate enforcement proceedings.
It is notable, in light of the conclusions of the Justice Select Committee Report, below, that the Court in both Fuseon and Mirchandani noted the public interest in the right to bring private prosecutions and that it would be a substantial deterrent to a private prosecutor initiating confiscation proceedings in the first place if they could never recover any of the costs of enforcement proceedings from central funds.
There were further developments this year in the Post Office convictions cases. In October the Post Office formally responded to the Court of Appeal regarding historical convictions between 2001 and 2013 referred by the Criminal Cases Review Commission, confirming that it is not opposing 44 of the 47 of appeals in which it acted as prosecutor. Convictions were overturned on appeal at Southwark Crown Court in December for six postmasters convicted in the Magistrates’ Courts. Some former postmasters have declared their intention to pursue claims of malicious prosecution.
The risk of malicious prosecution claims is one private prosecutors will be cognisant of throughout proceedings, although take over and discontinuance will usually be the first port of call for those defending in private prosecutions where issues of malice arise. Steyn J. carefully examined the test for malicious prosecution in criminal cases in CXZ v ZXC  EWHC 1684 (QB). The Court confirmed that the claimant must show:
- That he was prosecuted by the defendant, that is to say, that the law was set in motion against him by the defendant on a criminal charge;
- That the prosecution was determined in his favour;
- That it was without reasonable and probable cause;
- That it was malicious.
The judgment focused on the meaning of the term “set in motion” and the point at which the tort is engaged on the first limb, rejecting the claimant’s argument that police interview, or threat of arrest and investigation amounted to prosecution. The Court concluded that malicious prosecution is a form of wrongful use of process and mere investigation or interview will not suffice where a claimant has not been charged. Steyn J found that the effect of the authorities to date was as follows: “the requirement to show that the claimant was prosecuted involves showing that the law was set in motion by an appeal to some person clothed with judicial authority” . The judgment leaves open the prospect of a malicious prosecution being pursued at any stage post-charge, provided the remaining three limbs are satisfied.
The most significant development outside the courts last year was the publication in October of the Justice Select Committee Report on Safeguards in Public Prosecutions, explored in-depth by Gavin Irwin in a previous publication here.
The report proposed the strengthening of safeguards via:
- A binding code of standards, enforced by a regulator and applicable to all private prosecutors and investigators;
- A central register of private prosecutions involving an obligation to inform the CPS when a prosecution is instigated;
- A formal CPR requirement to inform defendants of their right to request take over by the CPS.
Perhaps the most important recommendations were around costs, including the proposal that a private prosecutor’s recoverable costs should be capped at legal aid rates, and defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS. The rationale for the costs proposals was expressed as an attempt to strive for equality of arms between prosecutors and the principle that “whether an offence is prosecuted or not should not depend on whether the victim has the financial resources to conduct a prosecution.” (paragraph 28).
The report also noted the public’s likely disapproval of the idea that the state will pay for private prosecution of financial crimes against large organisations from central funds but is not prepared to adequately fund the police and CPS to prosecute similar offences committed against ordinary citizens. These changes would inevitably deter parties contemplating a private prosecution: the offences involved are usually financially and legally complex, entail costly investigations and require specialist representation.
It will be interesting to see whether the pressure on resources brought about by the Covid-19 pandemic will diminish the government’s desire to implement these recommendations. The CPS and NPCC publication the Interim CPS Charging Protocol – Covid 19 Crisis Response, paints a gloomy picture of the backlog and pressures within the criminal justice system. It states that delaying the start of complex fraud proceedings is now appropriate, and prosecutors should consider that serious fraud cases are likely to ‘clog up the system’ if charged and actioned at this time. If the current landscape remains unchanged or worsens, private prosecutors will inevitably shoulder more of the burden of prosecuting some of these cases; in such circumstances the Select Committee’s recommendations on costs would be increasingly difficult to justify.