Criminal Procedure Rules Changes and Private Prosecutions

Nicola Sharp of Rahman Ravelli details how amendments to the Criminal Procedure Rules will affect those bringing private prosecutions.

The Criminal Procedure (Amendment No. 2) Rules 2022 are being introduced to achieve a number of goals, including supplementing the provisions of the Police, Crime, Sentencing and Courts Act 2022 and the Judicial Review and Courts Act 2022. But from a private prosecutions perspective they will usher in significant changes.

Section 6 of the Prosecution of Offences Act 1985 allows any person to start a prosecution if they can satisfy the court that the proposed defendant’s alleged conduct, if it were proved, would amount to a crime. Rule 7.2(6) of the Criminal Procedure Rules requires a private prosecutor to give the court information about the proposed prosecution to help the court to decide whether to issue a summons. Rule 7.4(2) lists the information that must be included in such a summons.

The Criminal Procedure Rules changes relating to private prosecutions come into effect on October 3, 2022. These are the focus of this article. In summary, they require the identification of the prosecutor in a magistrates’ court summons where the prosecutor is not a public authority. The amendments also list the established criteria for refusing to issue a summons and make it necessary for more detailed information to be provided to the trial court about any claim for a private prosecutor’s costs to be paid out of public funds

Obligations to the court

One of the main amendments is to Part 7, Rule 7.2. The new rules amend the 2020 rules so as to insert within Rule 7.2 a list of the criteria for refusing to issue a summons.

The court may decline to issue a summons or warrant for any of the following reasons:

• A court has previously determined an application by the same prosecutor which alleged the same or substantially the same offence against the same defendant on the same or substantially the same asserted facts.
• The prosecutor fails to disclose all the information that is material to what the court must decide.
• The prosecutor has reached a binding agreement with the defendant not to prosecute or has made representations that no prosecution would be brought, upon which the defendant has acted to the defendant’s detriment.
• The prosecutor asserts facts incapable of proof in a criminal court as a matter of law.
• The prosecution would constitute an assertion that the decision of another court or authority was wrong where that decision has been (or could have been or could be) questioned in other proceedings or by other lawful means.
• The prosecutor’s dominant motive would render the prosecution an abuse of the process of the court.

There is now also an obligation – under Part 7, Rule 7.4 – for the prosecutor to make clear to the court that they are bringing the prosecution as a private prosecutor rather than as a public authority.

These changes place a clear duty on those looking to bring a private prosecution. It may even, in some circumstances, go some way to helping courts act quicker in recognising and “weeding out’’ unsuitable cases. Yet highlighting any of the aforementioned issues is usually done anyway by those coming to court with a private prosecution.

Costs

An arguably more significant amendment comes in relation to the court paying a private prosecutor’s costs.

A private prosecutor can recover their legal costs from public funds regardless of the outcome of the case, under section 17 of the Prosecution of Offences Act 1985. Rule 45.4 of the Criminal Procedure Rules anticipates a detailed assessment of costs by staff for the court and requires the private prosecutor to outline their claim to the court.

In September 2021, the High Court decided, in the case of R (TM Eye Limited) v Crown Court at Southampton and Others, that courts dealing with a private prosecution could, and should, require more information about a private prosecutor’s claim for costs where the information supplied was not enough for the court to decide whether an order should be made and what limit, if any, to impose.

Following this, the 2022 amendment to Part 45, Rule 45.4 makes it clear that when a person wants the court to make an order regarding payment of their prosecution costs, they must provide a certain amount of detail. This puts more onus on the prosecutor when applying for costs from central funds. The 2020 rules stated that where a prosecutor wanted the court to make an order it must do so as soon as practicable and specify the amount claimed. Now section 45.4 (5) provides details of all the information the court will require in an application for costs.

The amendment requires anyone applying for prosecutor’s costs to apply in writing and serve it on the court officer (or, in the Court of Appeal, the Registrar) and specify the amount claimed to the date of the application. They must also provide:

• A summary of the items of work to date done by a solicitor.
• A statement of the dates on which items of work were done, the time taken, and the sums claimed.
• Details of any disbursements claimed, the circumstances in which they were incurred, and the amounts claimed in respect of them.
• Any further particulars, information and documents as the court may require.

While the application for costs is a regular feature of private prosecutions, the changes place precise obligations on the prosecutor – obligations that must be met.

Conclusion

The amendments that are being introduced are significant for private prosecutions. They will not bring about seismic change and will not transform the way that private prosecutions are conducted. But they can be seen as a tightening up of some aspects of the private prosecution process – making it more important than ever that those bringing such prosecutions meet all their obligations in the way they are expected to by the courts.