On 3 June 2020 the Criminal Cases Review Commission (CCRC) announced that it had referred 8 further Post Office workers’ convictions for appeal, bringing the total number to 47. On the same day, the Chair of the CCRC, Helen Pitcher, wrote to the Chair of the Justice Committee to ask if the Committee would undertake a formal review of the circumstances and safeguards where an organisation is allowed to act as a prosecutor when it is also the victim and the investigator of an alleged offence, as the Post Office was in these cases.
The Justice Committee decided to undertake an inquiry to examine the effectiveness of the safeguards in place to regulate private prosecutions in England and Wales. The Committee received evidence from a number of interested parties, including lawyers that specialise in private prosecutions, investigators, legal experts, the Crown Prosecution Service and the Criminal Cases Review Commission.
The Post Office is an organisation which is neither a typical private nor public prosecutor. We received detailed testimony from investigators into the Post Office who claimed that the organisation suffered from “institutional blindness” in its approach to investigations and prosecutions. We received no evidence to suggest that such an approach is commonly found in other public or private organisations that bring prosecutions. On the contrary, we received a number of submissions that large organisations that bring private prosecutions are typically especially eager to show that they are committed to upholding the highest possible standards of prosecutorial conduct.
However, the lack of internal or external oversight of the Post Office’s approach to prosecutions is an issue which speaks to a broader concern over the growing numbers of private prosecutions in England and Wales. It appears that the only institution which was aware of the number of prosecutions being brought by the Post Office was, until recently, the Post Office itself. As part of this inquiry, we have sought to identify the number of prosecutions brought by private organisations. At present there is no reliable data that records who is prosecuting offences in the courts in England and Wales. Private prosecutions are reported to be increasing, but without access to official data it is difficult to assess to what extent this is the case or to identify which organisations could be behind any such increase. Examples of prosecutions brought by the Post Office and the RSPCA suggest that it is not sufficient to rely on the courts alone to identify and remedy problematic prosecutorial practices.
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. This review is limited in scope by both the terms of the CCRC’s reference and the timescale of this inquiry. As such, this report identifies a number of reforms which could strengthen the regulation and oversight of private prosecutions without unduly restricting the right preserved by Parliament in section 6(1) of the Prosecution of Offences Act (POA) 1985.
Although the CPS plays a key role in overseeing the right to bring private prosecutions, in practice it cannot be expected to be a regulator as well as a private prosecutor. The limited resources of both the CPS and police are said to be behind an increase in private prosecutions, and so any changes to the way in which the CPS engages with private prosecutions should be carefully considered. Nevertheless, the CPS’s role can and should be enhanced through incremental improvements to the current system.
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.
Published: 2 October 2020