Private Prosecutions: The Issues
Niall Hearty of Rahman Ravelli details the matters that have to be considered when deciding whether to bring a private prosecution.
Private prosecutions can, for many individuals and corporates, be a more suitable – and possibly more effective – option than relying on enforcement agencies to hold others to account for wrongdoing. Whoever brings the prosecution is able to determine both its speed and its precise direction.
A private prosecution, therefore, is often more useful than involving the authorities, whose already-large caseload and stretched workforce may make it difficult for them to act swiftly. If the authorities have decided they will not investigate – or they did but the investigation failed – a private prosecution is the only real course of action.
Private prosecutions can be an important way to bring those believed to be responsible for wrongdoing to court.
Anyone who is thinking of bringing a private prosecution needs to consider whether this would be a more appropriate course of action than leaving the matter to be handled by state agencies. They should also assess whether a private prosecution would be a cheaper, more effective or quicker way of reaching a financial settlement than would be the case if they opted to bring civil proceedings.
If a private prosecution is viewed as the best option, the person or organisation that plans to bring one needs to be familiar with the issues involved in taking such a course of action.
The main ones are:
- Anyone can bring a private prosecution: Under section 6(1) Prosecution of Offences Act 1985 (POA), private prosecutions can be brought by any individual or company.
- A private prosecution proceeds like any other: Although a private prosecution is brought by an individual or organisation, it will proceed in the same way as any public prosecution brought by a state agency.
- Possible intervention from state bodies: If a private prosecution is brought, it is possible that the Crown Prosecution Service (CPS) may become aware of it through either the defendant, the prosecutor or the court where it is being conducted. Any of these three parties can request that the CPS intervenes. Whoever brings the private prosecution does not have to tell the CPS, the Director of Public Prosecutions (DPP) or any state agency about it. But some specific offences do require consent from either the DPP or the Attorney General. If the DPP gives consent to prosecute in such a case, the CPS will then take over and conduct the prosecution. Under section 6(2) POA, the DPP does have the power to take over a private prosecution but is not obliged to do so.
- The need to obtain evidence: Anyone who wants to bring a private prosecution must assess the strength of the evidence they can gather in support of their case. This requires expertise in identifying the important evidence, obtaining it and analysing its strength. When the CPS is considering bringing a prosecution, it assesses its case against the Full Code Test: whether there is sufficient evidence against the accused and whether it is in the public interest to bring the case to court. A private prosecution does not have to satisfy the Full Code Test, but a solicitor or barrister will not advise bringing a private prosecution if the Test is not met. If proceedings are issued, the evidence can be obtained via a number of possible ways. For example, the Bankers Books Evidence Act 1879 covers the use of bank statements and records as evidence, while witness summonses can be issued under the Criminal Procedure (Attendance of Witnesses) Act 1965, s.97 Magistrates’ Courts Act 1980 or para 4, Schedule 3 to the Crime and Disorder Act 1998.
- Private prosecution costs: In most cases, someone bringing a private prosecution can recover the reasonable costs of their investigation and prosecution from central funds - even if the prosecution was unsuccessful. This can make a private prosecution a more attractive course of action than civil litigation, where someone who successfully brings a claim may be left out of pocket if the defendant does not have the funds to meet the costs they have been ordered to pay. Under section 17 POA, the court can order payment from central funds “of such amount that the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings”. But if the court considers it inappropriate for those who brought the prosecution to recover all of their costs it can order a lesser amount to be paid. Section 18 enables a private prosecutor to recover costs from the convicted defendant. Section 19 allows a defendant to claim for costs if they were caused financial loss due to an unnecessary or improper act or omission by a private prosecutor. But this is unlikely to be possible if the private prosecution has been properly managed and conducted.
Possible Issues for the Future
The Post Office bringing private prosecutions for theft and false accounting against hundreds of its sub-postmistresses and sub-postmasters was criticised by the Criminal Cases Review Commission (CCRC). Last year, the CCRC said that 47 of the prosecutions were an abuse of process, as the Post Office had not disclosed flaws in its controversial Horizon accounting system and had not followed all reasonable lines of inquiry in its investigation.
The CCRC asked the Justice Committee to look at its concerns about a possible lack of safeguards in cases such as the ones involving the Post Office, where the organisation bringing the private prosecution is both the victim and investigator of the alleged wrongdoing.
The Justice Committee recommended that:
- The government should review funding arrangements for private prosecutions as a matter of urgency and cap the recovery of costs at legal aid rates.
- Consideration be given to introducing a binding code of standards that would apply to all private prosecutors and investigators and be enforced by a regulator.
- Every defendant that is privately prosecuted should be informed of their right to seek a review from the CPS.
- A central register of all private prosecutions should be established.
- The CPS should be told when a private prosecution commences.
- The government has already said it will introduce the legal aid costs limits and create a register of private prosecutions for England and Wales.
These recommendations are not intended to radically overhaul the private prosecutions process. But the proposals for the CPS to be notified when any private prosecution is brought and for defendants to be told they can seek a review from the CPS could see more cases being scrutinised at an earlier stage. This may, in turn, lead to some being discouraged from bringing private prosecutions due to the fear of them being discontinued in the early stages.
It remains to be seen if all of the Justice Committee’s recommendations become reality, and what effect they may have on the number of private prosecutions. The limit on costs that can be claimed and the prospect of increased CPS involvement may make private prosecution a less attractive option to many.
But any individual or organisation has to weigh up all the issues – both those already in existence and those that are being proposed – before deciding whether to go down the private prosecution route.