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Private prosecutions: safeguards Contents

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3The effectiveness of existing safeguards

40.The criminal justice system in England and Wales has a number of safeguards that regulate private prosecutions. This chapter examines the effectiveness of some of these safeguards.

Applying to the magistrates’ court for a summons

41.The first step in bringing a private prosecution is an application for a summons to the magistrates’ court. Changes in the CPR in 2018 strengthened this safeguard by requiring greater disclosure than had previously been provided.79 The Criminal Procedure Rules stipulate that prosecutors which are not a public authority within the meaning of section 17 of the Prosecution of Offences Act 1985 must: concisely outline the grounds for asserting that the defendant has committed the alleged offence or offences, disclose details of previous relevant applications or proceedings and provide an affidavit. The Criminal Law Reform Now Network explain that these provisions “aim to preclude prosecutions where the legal basis has not been thought through or is very contentious, and/or where there are grounds to suppose that the prosecutor is engaging on a wider legal campaign against the defendant”.80

42.The magistrate must then decide whether to issue the summons to allow prosecution to proceed. The High Court has recently outlined, in R (Kay) v Leeds Magistrates’ Court,81 the basis upon which magistrates should exercise their discretion when considering whether to issue a summons:

(1) The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.

(2) If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so–most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.

43.The Court held that that “compliance with the duty of candour is the foundation stone” upon which decisions to issue a summons are taken and its “importance cannot be overstated”.82 Stephen Colman, Senior Lecturer in Law at the University of Suffolk, points out that the High Court has “quashed decisions to issue summons for private prosecutions where there has been insufficient judicial consideration of whether the essential elements of the offence are present and whether or not the allegation is vexatious”.83 The High Court has emphasised that the issuing magistrate must “be scrupulous to ensure all elements of the alleged offence are established”.84 In the recent case of Boris Johnson v Westminster Magistrates Court, the High Court confirmed that the threshold for issuing a summons is a high one.85

44.In 2006, the High Court acknowledged that the criteria to be adopted by a magistrate “is much less onerous than the test which has to be applied by the Crown Prosecution Service in deciding whether to bring or to continue a prosecution”.86 De Than and Elvin argue that in practice this process does not supply an effective safeguard: “obtaining a summons or a warrant from a magistrate is in effect largely just a matter of completing the paperwork correctly”.87 The Centre for Women’s Justice also raise concerns that the discrepancy between the tests applied by the CPS and the Magistrates’ Court can lead to private prosecutions being commenced, which are not in the public interest, and cause serious harm to the accused.88 The Centre for Women’s Justice argues that to prevent this there should be a public interest filter conducted by the trial judge in order to consider whether the Full Code test is satisfied in private prosecutions.89

45.The Committee recognises that the process of applying for a summons has been strengthened, but its effectiveness in a particular case will depend on the approach taken by the respective magistrate and the defendant’s legal team. Equally, there is a risk that defendants with limited means may be unable to afford to challenge the grant of a summons via judicial review or application to the High Court to quash a summons.90

The Crown Prosecution Service’s power to take over a private prosecution

46.Section 6 (2) of the Prosecution of Offences Act 1985 provides that the Director of Private Prosecutions can take over the conduct of any criminal proceedings at any stage. The Crown Prosecution Service has published legal guidance which details its policy for deciding whether to take over a prosecution, and whether to continue or discontinue a prosecution.91

47.The CPS’s evidence to the Committee outlines that the CPS “is only made aware of a proportion of all private prosecution cases before the courts”.92 The CPS website outlines a number of different ways that the CPS might be informed of a private prosecution referred for review. A private prosecutor, a defendant or a judge might refer a prosecution to the CPS for review. The CPS might learn of a private prosecution via a press report. However, the CPS’ legal guidance on private prosecutions explains that in such circumstances, in the absence of a specific request, “no action will generally be taken unless there are exceptional circumstances”.93 The CPS explains that it would intervene “where a private prosecution was commenced for perverting the course of justice in relation to a rape allegation”.94 The guidance indicates that the CPS does not take a proactive approach to reviewing private prosecutions, but if it is alerted to a prosecution which has circumstances that raise particular issues that are considered to be of public importance it may review a private prosecution without a referral.

48.The CPS does not keep an official record of the number of prosecutions which are referred to it.95 However, in 2019, the Special Crime Division of the CPS started “keeping a manual record of private prosecution cases referred pursuant to its quality assurance function”.96 The CPS have stressed to us that these are not official statistics, nonetheless we are grateful that they have been made available. The CPS’s evidence states:

A detailed manual check of these records shows that for the period April 2019 to March 2020, the Special Crime Division quality assured 49 private prosecution referrals. Of the 49 referrals:

• the CPS decided to take over 32 private prosecutions. Of these 32 cases, 29 were taken over and discontinued and three were taken over and continued;
• the CPS decided not to take over the private prosecution in 17 cases.97

49.The relatively high proportion of discontinuances, 29 out of the 49 referred, could suggest that a greater number would be discontinued if more were referred. The CPS will discontinue a prosecution if “upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met”.98 The need to satisfy both elements of the test represents a relatively high threshold for a private prosecutor to meet and explains the proportion of referrals discontinued. If a private prosecution satisfies both elements of the test, the CPS will not necessarily decide to take over and continue the prosecution. It will only do so if “there is a particular need for the CPS to take over the prosecution”.99 A private prosecution brought by an organisation with a long record of successful prosecutions of a particular offence (a specialist in a particular type of prosecutions) is unlikely to meet the requirement of a “particular need”.

50.The CPS’ power to take over a private prosecution is a legislative backstop against misuse; it is not designed to require or enable the CPS to review all private prosecutions. The CPS “is not a regulator, licensing or inspection body”.100 The CPS’s evidence to the Committee argues that “taking on such a role would require it to act inappropriately as a gatekeeper”.101 Such an approach would arguably run the risk of effectively draining the right to bring private prosecutions, as preserved by section 6 (1) of the Prosecution of Offences Act 1985, of its legal effect.102 The Supreme Court’s majority decision in Gujra confirmed that the CPS’s current policy on when to discontinue a prosecution is compatible with section 6(1).103 Nevertheless, if the CPS’s approach to private prosecutions were to be strengthened further, without any change to section 6(1), it is far from clear that the courts would arrive at the same conclusion as in Gujra.104

Abuse of process

51.After a magistrates’ court grants a summons in a private prosecution, the defendant can at any stage apply to stay the proceedings as an abuse of process. This enables a court to stop a prosecution which is brought in “bad faith or due to overriding improper motive”.105 In R (Dacre) v City of Westminster Magistrates’ Court the Divisional Court considered abuse in the context of private prosecutions and set out that “proceedings tainted by mala fides or spite or some other oblique motive” could qualify as an abuse.106 However, the judgment of Latham LJ in that case also recognised that the presence of such a motive does not necessarily mean that the prosecution will meet the threshold required to qualify as an abuse of process.107 The case of R v Nightland Foundation provides an example of the sort of motive that can amount to an abuse of process in a private prosecution. In that case the court held that the prospect of the prosecutor benefiting from a confiscation order is an improper consideration which may lead to a successful abuse of process application from the defendant. The ground of abuse of process applies in the same way to both private and public prosecutions.108 Professor Peter Hungerford-Welch argues that the case law demonstrates that “a defendant to a private prosecution will rarely be able to have to case stayed as an abuse of process”.109 The Criminal Law Reform Now Network describe abuse of process as a remedy of “last resort”.110

Disclosure

52.The Criminal Bar Association’s evidence outlines the way in which disclosure works:

There are two stages in any disclosure process–firstly the revelation of material to the attention of the “prosecutor” and secondly the decision of “the prosecutor” as to whether that material should be disclosed to the defendant. In public prosecutions there is usually a clear distinction between the “investigator” (typically the Police) and the “prosecutor” (typically the CPS).111

53.The Private Prosecutors’ Association argue that in practice there is “very little difference” in the disclosure regimes that apply to private prosecutions and those that control public prosecutions.112 The Criminal Bar Association states that “private prosecutors are bound by the statutory disclosure regime in exactly the same way as a public prosecutor”.113 The statutory disclosure regime is set out in the Criminal Procedure and Investigations Act 1996 (CPIA). Provisions on disclosure can also be found in the Criminal Procedure Rules, the Attorney General’s Guidelines on Disclosure, and the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases.114 These rules apply equally to all prosecutions.

54.The main difference in the disclosure safeguards is that the CPIA Code of Practice does not apply to all private prosecutions. Section 23 of the CPIA provides for the creation of a CPIA Code of Practice. The Code contains rules that govern how investigators contribute to the disclosure process. It is designed to ensure “that where a criminal investigation is conducted all reasonable steps are taken for the purposes of the investigation and, in particular, all reasonable lines of inquiry are pursued”.115 Section 26 of the CPIA provides that “a person other than a police officer” conducting an investigation into an alleged offence should “have regard” to the CPIA Code of Practice. The net effect of this is that “some, but not all, investigators conducting investigations that lead to private prosecutions will be governed by the CPIA Code”.116

55.In practice, the approach of an organisation to pursuing all lines of inquiry and following the requisite standards of disclosure will depend on the culture of the organisation in question. The PPA argue that the approach to disclosure depends on the culture and mind-set of the organisation in question, whether public or private.117 The PPA reports that its own experience is that large organisations which regularly bring private prosecutions take the disclosure process extremely seriously. The PPA adds that it “would be wrong to conclude that all large organisations which bring private prosecutions are generically disrespectful of or careless about their disclosure obligations”.118 A number of organisations that bring private prosecutions, including the RSPCA, have shown their commitment to upholding high standards of investigations and disclosure by joining the PPA and agreeing to follow the Code of Private Prosecutors. The PPA’s Code incorporates the CPIA code and extends beyond it, which Alison Levitt QC explained “is a way of trying to achieve parity and best practice in both kinds of prosecution”.119 The CPS argue that the Code of Private Prosecutors, because it is not enforced, “does not amount to an effective regulatory safeguard”.120 A code of a “more binding nature” would, in the view of the editor of the PPA’s code, Professor Hungerford-Welch, “emphasise the importance of evidence gathering and not doing that in a way that is blinkered”.121

56.If an organisation is responsible for investigations and prosecutions, and there is an absence of internal and external oversight, there is risk that flawed investigations will take place without errors being identified at a sufficiently early stage to prevent errors being made in the prosecution and disclosure process. Ron Warmington of Second Sight explained that an inadequate investigation can fatally undermine a prosecution:

More worryingly, organisations also conduct limited investigations based on assumptions that could be flawed or simply untested. The obvious suspect in the case is not necessarily the perpetrator of the crime, particularly in evidentially complex cases. A package of evidence, therefore, prepared on a false premise, or on the results of a flawed investigation, cannot be remedied at the prosecution stage unless the prosecutor is alert to the possibility that key lines of inquiry have not been pursued and then is prepared to challenge the investigator on that point.122

57.A number of submissions to the Committee highlight the importance of the use of external organisations to conduct investigations and prosecutions: to, in effect, mirror the relationship between the police and the CPS. Another Day, an organisation that conducts investigations for private prosecutions, suggest that it is vital that private prosecutions use an independent investigations team, with an identified and trained disclosure officer.123 TM Eye put forward that “the role of ‘Investigator’ and ‘Prosecutor’ need to be defined and remain strictly independent”.124 The Chambers of Jonathan Laidlaw QC point out that the key to abiding by disclosure duties is for there to be a proper delineation of roles within the prosecution team.125 They suggest that large organisations are better placed to achieve such delineation which can require significant resources. They recommend the separation of the investigation and prosecution team and the appointment of independent disclosure officers. In their view, the fact that an organisation is a victim of an alleged crime does not represent an interest which leads to any unwillingness to comply with disclosure rules.126 Jeremy Asher, head of prosecutions at MSB Solicitors, told us that it is inappropriate for independent lawyers to employ in-house investigators “because of the obvious risk of conflict or criticism”.127

Consents

58.A further legislative safeguard is that certain offences require the consent of the Attorney General or the DPP before a prosecution can be brought. For example, section 117 of the Terrorism Act 2000 requires the consent of the DPP before proceedings for specified offences can be instituted. Such consents effectively limit the right to bring a private prosecution for certain offences. In 1998, the Law Commission described the list of offences which contain a statutory consent requirement as “haphazard” and recommended a more consistent approach.128 In Scotland the consent of the Lord Advocate is required to bring a private prosecution for any offence and, as a consequence, private prosecutions are exceptionally rare.129

Conclusion

59.Alison Levitt QC set out that, in her experience, the existing safeguards are effective at weeding out weak and unmeritorious cases at an early stage.130 We broadly agree that the existing safeguards enforced by the courts are effective. In particular, we accept the proposition made in a number of submissions that there does not appear to be a particular problem with private prosecutions in terms of upholding standards of disclosure.

60.Despite the impact of court procedures, private prosecutors are not regulated in the same way as public prosecutors. This regulatory gap is not necessarily problematic: many of the leading private prosecutors and investigators, some of which have given evidence to this inquiry, voluntarily operate to the same regulatory standards as public prosecutors. However, if private prosecutions increase this regulatory gap could become more significant. The Government should strengthen the safeguards that regulate private prosecutions to ensure that any organisation that conducts a substantial number of prosecutions is subject to the same regulatory standards and expectations of accountability and transparency as public prosecutors. We recommend that the Government should consider enacting a binding code of standards, enforced by a regulator, that applies to all private prosecutors and investigators.

61.In order to achieve parity with public prosecutors, the duty to comply with the code should have legislative force.131 The aim of the code would be to ensure that all organisations which bring prosecutions respect the need for “separation of investigation and prosecution and the need for objective and independent prosecution”.132 As Wooler notes a legislative code will not “necessarily achieve the standards and consistency required”.133 The code would need to be enforced by an institution or body with the requisite expertise and resources. The functions and the responsibilities of HM Crown Prosecution Service Inspectorate (HMCPSI) could be expanded to take on this role.

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