Are There Adequate Safeguards For Private Prosecutions

Are There Adequate Safeguards For Private Prosecutions

As we discussed in a previous post, there are several advantages to bringing a private prosecution if you are the victim of a business crime.  These include the fact that unlike the Crown Prosecution Service (CPS), you understand your business and industry.  Furthermore, you can select a more senior and highly-skilled legal team than what the CPS can provide.

But for those who are pursued by a private prosecution, what safeguards are in place to protect them from malicious or weak claims?  And is the private prosecution process fair and subject to the same standards as public prosecutions?

These questions were considered by the House of Commons Justice Committee, which published its report in October 2020.  It stated:

“The existing safeguards in place to regulate private prosecutions are effective at filtering out weak claims. Furthermore, the judicial process that applies to all prosecutions ensures that private prosecutions are rigorously tested. Nevertheless, it is possible to identify simple measures that could enhance the effectiveness of existing safeguards and procedures.

Overall, it is difficult to escape the conclusion that the organisational structure of the prosecutorial system in England and Wales is rather haphazard. An increase in private prosecutions is likely to make that situation worse. Without effective oversight of the system as a whole, the Government is going to struggle to identify any reforms that could make the overall prosecutorial system work more effectively and deliver better outcomes for the public and for access to justice.”

The report recommended the following to improve the fairness and standards of private prosecutions:

  • Funding – the government needs to review funding arrangements for private prosecutions.  The costs associated with private prosecutions is highly controversial.  The cost to the State of a private Prosecutor will almost always be more than that of a CPS Prosecutor.  Furthermore, there is considerable inequality between the ability of the Prosecutor and Defendant in private prosecutions when it comes to recovery of costs.  Under section 17(1) of the Prosecution of Offences Act 1985, a Prosecutor can recover costs even if their case was unsuccessful.  Defendants, on the other hand, save for two limited exceptions are unable to recover any legal costs if they are acquitted of criminal charges.  And because legal teams in private prosecution cases often comprise of highly specialist QC’s and senior Solicitors, convicted Defendants can face far higher costs than they would if they were prosecuted by the CPS.  It was recommended that costs levied against Defendant’s should be capped at legal aid rates.
  • Binding standards, enforced by a regulator, should apply to all private prosecutions.
  • The creation of a centralised system for private prosecutions.  When a private prosecution is brought, Her Majesty’s Courts and Tribunals Service (HMCTS) should inform the CPS immediately.
  • Every person or organisation that has a private prosecution brought against them must be told that they have a legal right to ask the CPS to review the prosecution.  This change should be implemented by amending the Criminal Procedure Rules.  In situations where the police are involved in a private prosecution and the role of the Magistrate is circumvented it will be especially important that the Defendant is notified of their right to request a review of the prosecution.  There should be a duty imposed upon the police to inform the Defendant that they are to be prosecuted by a body other than the CPS and that they have a right to request a review.
  • Organisations that bring a significant number of private prosecutions should be regularly inspected and if necessary, have their right to bring prosecutions curtailed.

In summary

The right enjoyed by corporate entities to bring a private prosecution is important in promoting access to justice.  However, as noted in the report “there is a duty on the government to ensure “that the rise in the number of private prosecutions does not result in the development of a parallel system where the public interest, accountability and transparency are secondary to private interests.”  It is also imperative that the recommendations cited above are implemented to ensure private prosecutions are conducted fairly and held to the same rigorous standards as prosecutions brought by the CPS.

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