Since the dramatised Post Office “scandal” aired on ITV and humanised the negatives of these particular private prosecutions, the practice has been thrust into the public eye, provoking national debate. Although it is an important right for all individuals to be able to bring private prosecutions, this should not be unfettered and there is understandable and growing public concern about disclosure, oversight, and inbuilt vested interest. This article will detail the existing checks in place and highlight key areas to focus on if instructed in such a case. 

 By Alicia Doble, Barrister at Queen Square Chambers

Background to private prosecutions

All private prosecutions commence with an application for a summons, which is commonly heard by Magistrates. This is the first potential safeguard in which the court must assess whether there is a prima facie case that the elements of the offence are made out (R. (on the application of Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin)).

Every individual is entitled to bring a private prosecution, enshrined in section 6(1) of the Prosecution of Offences Act 1985 (“POA”). This has long been considered an important right, providing a safeguard against oversights by public prosecutors, but it is necessary that this comes with careful precautions, checks and regulations. Otherwise as depicted in the Post Office drama, injustice and issues can occur.

When a case is brought to the public prosecutor’s attention, they have the power under section 6(2) POA to either take over the case, if there is “particular” need for the CPS to take over, or if the full code test is not met, they can take over the case in order to discontinue proceedings. However, the CPS website sets out that “In general, the CPS will not take over a private prosecution because of misconduct or alleged misconduct by the private prosecutor. It is not the role of the CPS to discipline private prosecutors but rather it is for the courts to control private prosecutors.”

Alarmingly, between 2019 and 2020, the CPS took over 33 private prosecutions, and of these 30 were discontinued, perhaps indicative of the number of private prosecutions being brought without proper consideration of the full code test.

Disclosure issues

A key issue is how a private prosecutor manages disclosure. The CPS employs a disclosure officer who remains impartial and objective, but this would be difficult for a private prosecutor who, by the nature of the case being brought, has a private interest. One solution is to employ the services of an independent party for the process of disclosure and production of an unused material schedule. This, however, is likely to be costly and the private prosecutor will still face the issue of lacking investigatory powers and the authority of the CPS to compel third parties to share documents.

If the police hold information that may need to be disclosed, the private prosecutor does not have a given right to this information and largely this material will be confidential.

Costs

If costs are incurred to either party due to an “improper act or omission” by the other party, then those responsible for the act or omission will pay the costs. This has been extended to bringing a private prosecution where there are failures to disclose important documents or in circumstances where there is no realistic prospect of conviction (R (on the application of Ayodeji Holloway [2019] EWHC 1731 (Admin).

Lack of regulations/oversight

There is currently no binding regulatory framework for private prosecutions. Private prosecutors do however have the same duty as public prosecutors to undertake an independent and objective analysis of the evidence before commencing proceedings to determine whether there is a realistic prospect of a conviction.

Public prosecutors are subject to various forms of scrutiny, including Her Majesty’s Crown Prosecution Service Inspectorate and accountability to Parliament through the Attorney General, whereas private prosecutors are only subject to scrutiny by judicial review.  However, because private prosecutors invariably have private interests in the case, where there is scrutiny, this is bound to be greater.

Recommendations

There have been various recommendations to try and ensure justice in private prosecutions. One of these is to cap the recovery of costs at legal aid rates. There is currently no costs consequence if the private prosecutor is unsuccessful, and the costs paid to them come largely from central funds, although a defendant can also be ordered to pay a contribution to costs.

One key recommendation is a binding code of standards enforced by a regulator. Although, it is not clear who said regulator would be and it would surely not be feasible for each case to have oversight. It is also recommended that the CPS should be informed when a private prosecution commences. Since the ‘Horizon’ scandal, reforms to private prosecutions which were not adopted following a Justice Select Committee in 2020 have been discussed but no formal decision has been taken by the government.

What can we, as barristers do? 

With all of this in mind, what can we, as barristers do?

Although the Post Office inquiry is not yet complete, Richard Moorhead, a member of the Horizon Compensation Advisory Board says the inquiry has shone a glaring spotlight on the independence and integrity of the legal profession and the management of legal risk in the corporate world. He says ‘What the evidence so far suggests is there have been problems with competence, ethical and professional conduct over many years – in-house, in private practice, both junior and senior lawyers’, he says.

If instructed for the private prosecutor, it will be important to strongly advise of the potential costs implications and that full and frank disclosure is imperative. It is advisable, given the costs consequences and safeguards at an early stage, to have the case effectively trial ready prior to the application for a summons.

It is crucial, that advocates who have conduct of private prosecutions observe the highest standards of integrity, of regard for the public interest and duty to act as a minister of justice (as described by Farquharson LJ) in preference to the interests of the client who has instructed them to bring the prosecution.’ R v Zinga [2014] 1 Cr. App. R. 27

It is clear that a key focus will therefore be advising on disclosure and ensuring that this is diligently complied with in an objective, independent manner, and any issues are highlighted swiftly and clearly.

If instructed for the defendant, it would often be advisable to refer the case to the DPP for consideration of the case being taken over by the public prosecutors. This is likely to lead to a more impartial and objective investigation and removes the risk of uncapped fees and therefore perhaps significant cost consequences.

These are well established principles, but in cases of private prosecutions where any scrutiny is even higher, this needs to be at the forefront of advocates minds.

If we view the CPS as the ‘market leader’ and private prosecutions as the ‘own brand’ equivalent, with correct procedures are applied, you shouldn’t be able to tell the difference; but is this realistic with the inherent vested interest?

Alicia Doble, Barrister at Queen Square Chambers