Investigatory Powers in Private Prosecutions: Hurdles and Opportunities
The tension: Greater profile, no greater powers
Private prosecutions are on the up, both in terms of volume and profile. This is in part thanks to high profile private prosecutions, such as the headline-grabbing but ill-fated prosecution of Boris Johnson. It is also the consequence of the cuts that have worn away at the CPS, police and other agencies: where a void has been left, private prosecutors have stepped in to fill it.
Whilst not escaping all criticism (many worry that attempts such as Ball v Johnson,  5 WLUK 457 may actually damage credibility), private prosecutions have been recognised as playing a welcome and important role in criminal justice, particularly in times of austerity.
The Court in Scopelight v Chief Constable of Northumbria Police Force  QB 438 emphasised the public interest that exists in private prosecutions and those involved in the court system have observed an increase in the number of private prosecutions in recent years.
However, there is a tension in this area because as the volume and profile of private prosecutions grow, the powers of investigation available remain the same. Indeed, there is arguably a greater degree of scrutiny on private prosecutions, which often face applications to dismiss and abuse arguments in their infancy, and yet they are inevitably hampered by less experience and less resources than their state-led counterparts.
Powers and hurdles
That is not to say that the private prosecutor is powerless. Private prosecutors have a range of investigatory resources they can draw on in building their case. However, without the formal armoury of powers available to the police, private prosecutors will have to be both more cautious and more creative in their path to building a strong case.
The most obvious resource for a private prosecutor is the Court. In the Magistrates’ Court, you can seek to depose a witness, and in the Crown Court you can request a summons. These powers allow you to seek documents from third parties who may have them.
However, this power is not without its limitations. The threshold for obtaining documents through this route will inevitably be higher than the search and seize powers of the police under PACE 1984. If you are seeking a witness summons for example, you will have to pass the hurdles of identifying what evidence that witness can give, why it is likely to be material and why it is in the interests of justice to issue a summons, set out in Part 17 of the Criminal Procedure Rules.
Without the weight of a statutory power, the private prosecutor will also have to rely on more co-operation than their state counterparts. This may take the form of seeking assistance from individuals or bodies, who may be more reluctant to the respond to the enquiries of someone who does not have the clout of the CPS or police.
It is also inherently harder to secure the much-needed assistance of “insiders” to the Criminal Justice System as an “outsider”. For example, obtaining access to court records may be easier for the CPS, a fellow state-body, than for a private prosecutor.
In fact, co-operation with the police and CPS themselves will often be a key resource. CPS guidance on private prosecutions reflects a reticent approach (for example, CPS guidance counsels against disclosing evidence to a private prosecutor stemming from a case that has not met the two-fold evidential test). However, in reality it is not unusual to see the police supporting private prosecutions, whether it be through the search of a property or undertaking a PACE-compliant interview.
Again, this power is not without difficulties. There is a lack of formal guidance on the relationship between these bodies and private prosecutors, and the courts have warned of the dangers of police passing evidence obtained through special powers into the hands of a private body (see the judgment in Zinga  EWCA Crim 2357 for example).
Creativity and a careful approach
These investigatory hurdles are not insurmountable. However, they call for both a more creative and a more careful approach for a successful private prosecution.
Caution is needed to ensure that the evidence gathered during an investigation will ultimately stand up in court: PACE-compliant interviews, continuity in the handling of exhibits, a meticulous approach to disclosure.
Creativity may be needed to find ways to build a robust case without recourse to formal investigatory powers. One example is expert advice. Experts are likely to be open to taking instructions from and working with private individuals. An expert may be able to assist with anything from CCTV to handwriting, to document-dating and forensic evidence. They may be an important resource for a private prosecutor who faces obstacles in other investigatory routes.
Ultimately, expert legal advice will be essential in ensuring that all available areas of investigation are identified and explored, and that evidence gathered in the process will be admissible if the case reaches court.
The Court in Zinga  1 WLR 2228 called for “very urgent consideration” by the Home Office of what the police can do when approached for assistance. 5 years on, there is still a void in this area.
However, those involved in the world of private prosecutions are responding quickly to the changing landscape. The New Code for Private Prosecutors reflects a deliberate and marked commitment to match the status and integrity of state-led prosecutions. Such commitment to maintaining high standards in private prosecutions may pave the way for greater investigatory resources in this area: if with great power comes great responsibility, then with greater responsibility may come greater power.