Private prosecutions: A parallel system of justice?

With the increasing number of private prosecutions and limited resources of both the Crown Prosecution Service and the police, there is a concern that a parallel system of justice is developing in England and Wales. In its Ninth Report of Session 2019-21, the Justice Committee considers this concern (amongst others) and makes several recommendations to strengthen the regulation and oversight of private prosecutions.

This blog post provides an overview of the background to private prosecutions, the Justice Committee’s inquiry into existing safeguards and the potential implications of the Committee’s recommendations for future private prosecutions.

Background

Until the 19th century, criminal prosecutions were brought by individuals who were typically victims of crimes and acted as both investigator and prosecutor. Over time, the role of investigator and prosecutor moved from individuals to the police. However, this dual role led to criticisms about procedural fairness. The Crown Prosecution Service ("CPS") was established in 1986 to ensure that those investigating alleged criminality (the police) were not also making the decision to prosecute. Three decades later, the House of Commons Justice Committee ("Justice Committee") has had to grapple with similar issues, albeit in the context of corporate entities, rather than individuals, acting as victim, investigator and prosecutor.

The right to bring a private prosecution is enshrined in section 6 of the Prosecution of Offences Act 1985 which guards against “the inaction of authorities”. Although private prosecutions are typically brought where such inaction exists, this does not preclude the actions of private prosecutors amounting to an abuse of process. An abuse of process occurs where (i) the accused could not receive a fair trial; or (ii) where it would be an affront to the court’s sense of justice and propriety to try the accused.

Justice Committee inquiry and recommendations

In June 2020, the Criminal Cases Review Commission ("CCRC"), a statutory body responsible for investigating alleged miscarriages of justice, concluded that the private prosecutions of 47 sub-postmistresses and sub-postmasters by their employer for theft and/or false accounting offences amounted to an abuse of process, as the prosecuting organisation had failed to disclose flaws in its accounting system and to pursue all reasonable lines of inquiry during its investigation. This raised concerns over the appropriateness of an organisation prosecuting a case where that organisation is also the victim and investigator of the alleged criminality, calling into question whether the existing safeguards around private prosecutions are sufficient.

The Justice Committee considered these concerns at the CCRC’s request and subsequently carried out an inquiry into private prosecution safeguards. Emphasising the Government’s responsibility to ensure that the rise in the number of private prosecutions does not result in a parallel system of justice, the Justice Committee recommended that:

• the Government should urgently review funding arrangements for private prosecutions and cost recovery should be capped at legal aid rates. This is to ensure the most cost-effective use of public funds given that private prosecutors can seek to recover their costs (regardless of outcome and in amounts that usually exceed that sought by the CPS from public funds)

• the Government should consider enacting a binding code of standards, enforced by a regulator, that applies to all private prosecutors and investigators

• every defendant who is privately prosecuted should be informed of his or her right to seek a review from the CPS

• a central register of all private prosecutions should be established, and

• the CPS should be notified when a private prosecution is initiated.

Implications

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.

Although there is no suggestion that the Full Code Test (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) must be satisfied before seeking a summons to commence a private prosecution, the practical impact of the CPS being notified of all private prosecutions, 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 considering private prosecutions may think twice about commencing proceedings given the risk of the case being discontinued if referred to the CPS at an early stage.

To date, two of the Justice Committee’s recommendations have been taken forward, with the Government committing to legislate to ensure that the legal aid cap also applies to private prosecutors and that a central register of all private prosecutions in England and Wales is established. These actions are likely to curb the rise in large scale private prosecutions, especially given that the legal aid cap will result in only a fraction of costs incurred (usually in the hundreds of thousands of pounds) being recoverable. Private prosecutions may no longer be considered an economically viable option, potentially making civil litigation more attractive.