Newsletters Private Prosecution 14th Sep 2018

Private Investigations

While many private prosecutors will already have all of the evidence they need to commence proceedings some will need to supplement it through further investigatory measures. Whilst private prosecutors may not enjoy the plethora of powers available to their public counterparts, they still have access to an important armory which can be effective when properly and carefully used. In order to ensure that any evidence obtained is admissible, it is essential, therefore, that such steps to obtain further evidence are undertaken promptly and with a sound knowledge of the law and procedure which will govern the use of that material in a criminal prosecution. It is essential to take legal advice at the earliest possible stage.

Co-operation with the defendant

There will be many cases where the suspected parties have an incentive to co-operate with the prosecutor, either in an attempt to avoid a prosecution, or to avoid other sanctions, for example where the potential prosecutor is a current employer. Careful employers with one eye on the potential for employee criminality may be able to set up contracts and workplace structures to enable easy evidence gathering, for example, through company owned computers and phones. Employees may be willing to undertake voluntary interviews and allow searches.

Whilst that is all permissible, such arrangements are likely to trigger the potential for a section 78 application if any prosecution ensues. In such a situation, it is essential that these investigations have been carried out properly and as far as possible in accordance with the PACE codes which would apply to the police. Interviews for example where a criminal offence is suspected should be conducted under caution, with the option of independent legal advice, and with the express proviso that they are voluntary.

Co-operation with the CPS and police

It may be that a police investigation will have already taken place, but did not result in a public prosecution for one reason or another. In such circumstances a private prosecutor is entitled to ask the CPS or police to provide the evidence collected. However, the CPS’ guidance states it will not normally be in the interests of justice to provide material where it has been determined that the evidential threshold of the two stage test is not met. It also states that where the original provider of the evidence does not consent to its provision, a court order should be sought, which in criminal proceedings will take the form of a witness summons (on which see more below).

Whether or not any prior investigation has taken place, a private prosecutor might also come to an agreement with the police to conduct aspects of the investigation on their behalf. This would potentially enable the use of warrants and mutual legal assistance. Given such applications will be ex parte, the prosecutor must be aware of her/his duties of full and frank disclosure.

A remaining knotty issue, also considered but not resolved in the Zinga litigation , is whether such an agreement can allow for the police to be given a gift of money in return for their services under section 93 of the Police Act 1996. The current National Policing Guidelines, which largely deal with charging for Special Police Services, do not mention section 93. Certainly in London, the data on section 93 released by the Met suggests no such agreements have been made in recent years.

Court orders

Where a private prosecutor knows that a third party possesses relevant information, there is nothing to prevent them utilising the little used power of the Magistrates’ Court to depose a witness under the Crime and Disorder Act 1998, or the Crown Court’s power to issue a witness summons, both of which can include compelling the production of documents.

In the civil courts the private prosecutor also has a number of options including a Norwich Pharmacal order for third party disclosure of information which will substantiate an action against known or unknown wrongdoers, or to enable the tracing and finding of such information; or an order for pre-action disclosure against a potential defendant. The former is likely to allow access to a wider category of material than that allowed by the restrictive case law on witness summonses, and there is precedent for such orders being granted to allow the release of material for use in criminal cases, but again the case law on collateral purpose is strict and the prosecutor should therefore be alive to her/his duties.

Material disclosed in civil proceedings, whether by way of standard or pre-action disclosure, cannot of course be used outside those proceedings except where read or referred to in open court or with the court or disclosing party’s permission. Whilst permission from the court for use of material will not necessarily be impossible to obtain, expert advice will be needed at an early stage to avoid an application for material that can never be used. Compulsory disclosure by a potential defendant is also likely to raise Article 6 arguments.

Expert evidence

Expert advice should be obtained as soon as its relevance is appreciated. The private prosecutor must be alive to the need to comply with the Criminal Procedure Rules governing the structure and format of any such evidence and must ensure that any expert who is instructed is aware of their duties and obligations.

Any communication or instruction provided to the expert must be recorded and considered for disclosure in due course; as should the details of any conversations or consultations. In short, the appropriate way to approach the gathering of expert evidence is to do so on a strictly formal basis and to reduce all contact to writing.

Further developments

This is an area relatively little considered by the courts or the relevant public authorities to date. There may be a compelling argument for private prosecutors to have access to further powers, under the supervision of the court, to place them in a better position to fill the gap left by the retraction of public prosecution services post-austerity. It is arguable that the CPS’ Guidance on this topic is too restrictive; why shouldn’t victims of crime, in appropriate cases, be able to consider the evidence for themselves to come to their own decision on the evidential threshold? At the very least there is a need for clarity and formal guidance. In the absence of any current political momentum, the Private Prosecutors’ Association may be able to fill that vacuum in the near future.

Oliver Glasgow QC & Lewis MacDonald

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