Increasing Regulation of Private Prosecutions
We are currently living in an era where private prosecutions are fast becoming commonplace.
The past few years have seen a significant rise in the number of prosecutions brought privately, particularly in cases involving fraud. Whether this is the result of police indifference to financial crime or whether the private prosecutor simply has more energy to devote to their case is unclear; but what is clear is that private prosecutions are becoming a regular sight in Crown Court lists.
As the frequency of private prosecutions has increased, so too – understandably – has the regulation of them. Over the last 18 months the courts and the law have been adapting to private prosecutions and ensuring that they are properly controlled.
This article will explore three relatively recent changes aimed at the regulation of private prosecutions:
- The 2018 and 2019 updates to the Criminal Procedure Rules 2015;
- The introduction of the ‘Code for Private Prosecutors’ in July 2019;
- The new Plea and Trial Preparation Hearing form in the Crown Court (also July 2019).
Updates to the Criminal Procedure Rules 2015
Over two successive years there have been important changes to the Criminal Procedure Rules 2015 (‘the Rules’) regarding applications for summonses (rule 7.2). This is of paramount importance for private prosecutions, given that the summons is where every private prosecution begins its life.
Before April 2018 the Rules did not set down any requirements regarding the content of an application for a summons. The April 2018 update to the Rules saw, for the first time, a list of requirements to be included in the summons or warrant, as follows:
- The grounds for asserting that the defendant has committed the alleged offence or offences;
- Disclosure of previous applications by the same applicant regarding the current allegation, and details of any current or previous proceedings brought by another prosecutor in respect of the current allegation;
- A statement that: the information is true to the best of the applicant’s knowledge and belief, that the evidence relied upon will be available at trial, and that the details given re other proceedings are true; and
- That the application discloses all the information that is material to what the court must decide.
The above provisions were directed towards private prosecutions and yet, interestingly, only applied only to an unrepresented private prosecutor: “(5) Paragraph (6) applies unless the prosecutor is— (a) represented by a legal representative for the purposes of the application under this rule; (b) a public authority…”. It is unclear why the provision was drafted in such a way but, given the increase in cases being brought by legally represented private prosecutors, the draftsmen have seen fit to fill that lacuna.
Thus, in April 2019, an update to the Rules extended these requirements to include all private prosecutors, including those represented by lawyers: “(5) Paragraph (6) applies unless the prosecutor is— (a) a public authority…”.
This is just one example of attempted control of the private prosecutions as they make their way through the courts by providing a power to weed out applications that are improper before they even get started.
Code for Private Prosecutors
Then, in July 2019, came the long anticipated and much welcomed Code for Private Prosecutors, (‘the Code’) as created by the Private Prosecutors Association (‘PPA’). The Code sets down guiding principles to be followed when conducting private prosecutions, much like the Code for Crown Prosecutors. The Code, although not law, is a benchmark of quality that all PPA members undertake to abide by, and is an important step in the regulation of private prosecutions.
It is not proposed to add to the already extensive number of articles about the Code but it is nonetheless important to observe the significant step that this represents in the management and control of this growing area of law.
A detailed article on this matter, written by Christopher Coltart QC and Angus Bunyan, can be found here.
Lastly, and coincidentally also in July 2019, the criminal courts saw the introduction of the new ‘PTPH 2’ form – the second version of the case management form used at Plea and Trial Preparation Hearings in the Crown Court.
The Ministry of Justice does not cite the rise in private prosecutions as a reason for creating the new version of the form, but it is easy to see that this version does assist with case management for the large-scale privately prosecuted fraud cases now making their way through the courts.
For instance, the form has updated its ‘disclosure’ section to include a tick-box for the adequacy of any Disclosure Management Document (‘DMD’), inviting defence engagement from that early stage as to whether or not the DMD is sufficient and to make clear what other reasonable lines of enquiry could be explored.
This will be a welcome tool for private prosecutors in closing off unreasonable areas of disclosure at an early stage to create a more manageable task.
Before Brexit got in the way, it seemed as though private prosecutions were on the mind of the legislature. A bill entitled ‘Criminal Frauds (Private Prosecutions) Bill 2017-2019’ was making its way through Parliament, having undergone its second reading in the House of Commons on 23 November 2018. It is described as: “a Bill to make provision about private prosecutions in cases of suspected criminal fraud in certain circumstances; and for connected purposes.”
The bill failed to make its way through Parliament before the end of the session and so its content is still unclear. However, what is clear is that there is likely to be legislation coming down the pipeline in relation to private prosecutions.
In addition, if the updates to the Criminal Procedure Rules stay on track, particularly since further landmark determinations such as that in the famous private prosecution of Boris Johnson (considered by Brian O’Neill QC and Lewis MacDonald in this Newsletter), there are certainly further updates to come.
Watch this space.