Further safeguards for private prosecutions may be on the horizon following the Post Office saga

Mr Justice Fraser’s judgment in Bates v Post Office Ltd (No.6: Horizon Issues) [2019] 12 WLUK 208 has raised questions as to the need for further safeguards around private prosecutions following an inquiry by the House of Commons Justice Committee (“HCJC”).

The Post Office group litigation arose out of a dispute between the Post Office and several former or serving sub-postmasters and sub-postmistresses (the “SPMs”). The SPMs claimed that defects in the Post Office IT system (known as “Horizon”) had caused alleged shortfalls and discrepancies in their branch accounts, which led to many of them being wrongfully convicted for false accounting or theft. Mr Justice Fraser found for the claimants, recognising that it was possible for bugs in the Horizon system to have caused the discrepancies or shortfalls in the branch accounts. This meant that the claimants may have been wrongfully convicted in earlier criminal proceedings brought by the Post Office as a private prosecutor.

Following this judgment, the cases of 47 SPMs were referred to the Court of Appeal by the Criminal Cases Review Commission, who also called for the HCJC to review the safeguards in connection with private prosecutions.

The HCJC inquiry

A person’s right to commence criminal proceedings (found in section 6(1) of the Prosecution of Offences Act 1985 (“POA”)) is considered to be fundamental to guard “against the inaction of authorities”. There are a number of legal safeguards that exist to ensure that private prosecutions are conducted fairly. For example, anyone seeking to bring a private prosecution must obtain a summons from the Magistrates’ Court, and the Crown Prosecution Service (“CPS”) may take over a private prosecution at any stage (section 6(2) POA). Importantly, private prosecutors are bound by the same statutory disclosure regime as public prosecutors.

The HCJC’s full report is available here. Although the HCJC concluded that the existing safeguards enforced by the courts are effective, it noted that private prosecutors are not regulated in the same way as public prosecutors and that this “regulatory gap” could become more significant as the use of private prosecutions increases. Consequently, several reforms were recommended by the HCJC to improve regulation, accountability and the transparency of private prosecutions.

Among the recommendations are two that may result in the CPS playing a bigger role in reviewing private prosecutions. The first is that there should be a central register of private prosecutions (recording the investigator, the private prosecutor, the offence and the outcome) and that the CPS should be notified whenever a private prosecution is commenced. A private prosecutor is not currently under any specific duty to inform the CPS that a private prosecution has been commenced, although the CPS may find out about one in a number of ways. The CPS can and indeed occasionally does take over private prosecutions, either to dismiss them or to continue them itself. However, it does not proactively review cases in the absence of a specific request or any exceptional circumstances (for example, where a private prosecution was commenced for perverting the course of justice in relation to a rape allegation or the consent of the Director of Public Prosecutions is needed before proceedings may be commenced in any event). It was also recommended that defendants in private prosecutions be informed of their right to seek review from the CPS.

Comment

Whilst at first sight the recommendations do not seek to overhaul the regime by which private prosecutions are brought, they may have a greater impact than was necessarily intended.

A magistrate will consider whether (i) prima facie the elements of the offence are present; (ii) the case is not time-barred; and (iii) the court has jurisdiction but will otherwise issue a summons unless there are compelling reasons not to (such as the application is vexatious). In contrast, when a case is specifically referred to the CPS, the CPS will consider whether the Full Code Test is satisfied (i.e. that there is sufficient evidence to provide a realistic prospect of conviction and it is in the public interest to bring the prosecution). If either of these limbs is not satisfied, the CPS is likely to discontinue a private prosecution. The Full Code Test therefore requires a higher threshold to be met than that applied by the magistrates at the summons stage.

Whilst there is no suggestion that the Full Code Test must be satisfied before commencing a private prosecution, the practical impact of the CPS being notified of all private prosecutions via the proposed register and the defendant being reminded of their right to refer the case to the CPS, is that more cases are likely to be reviewed at an earlier stage and subjected to the Full Code Test. If these recommendations are implemented, those bringing private prosecutions may think twice about commencing proceedings where the Full Code Test is not satisfied, to avoid the risk of the case being discontinued if referred to the CPS at an early stage (i.e. before the prosecution case is served). This would likely impact cases where the elements of the offence are prima facie present to obtain a summons, but the private prosecutor intends to rely on its statutory powers (triggered by proceedings commencing) to obtain witness evidence to satisfy the Full Code Test.