4Strengthening safeguards
62.This inquiry has identified a number of reforms that could strengthen existing safeguards and improve the regulation, accountability, and transparency of private prosecutions.
A central register of private prosecutions
63.The CCRC suggested that the Committee look into the desirability of a register of private prosecutions.134 We asked the Attorney General if she had any statistics on who was bringing prosecutions in the courts in England and Wales. She confirmed in writing that there was no official data available on the total number of private prosecutions.135 The current available data, which relates to the number of prosecutions referred to the CPS and those that access central funds is inadequate and only represents a small proportion of the total number of private prosecutions initiated in England and Wales.
64.One of the lessons to emerge from the examination of the Post Office’s prosecutions is that there was a dramatic and sustained increase in the number of prosecutions brought by the Post Office between 1999 and 2012. This increase in terms of the number of prosecutions brought by a particular body for particular offences could, and perhaps should, have triggered additional scrutiny. It is an unsustainable situation for the public to rely on individual organisation to publish information on the number of prosecutions. The public has a right to know which organisations are using the courts to bring private prosecutions.
65.There was a high degree of consensus among those that submitted evidence to this inquiry that HM Courts and Tribunals Service (HMCTS) “needs to start gathering information about private prosecutions”.136 The Private Prosecutors’ Association point out that “at present there is no way of monitoring issues or causes for concern”.137 The PPA suggest that HMCTS should record the number and type of private prosecutions.138 We recommend that HMCTS establish a central register of all private prosecutions in England and Wales.
66.The creation of a central register could be administered by a requirement to submit a digital form when applying for a summons. The register should record, at a minimum, who is bringing the prosecution, the investigator responsible and the alleged offence. HMCTS would then have to track the progression of each prosecution so that the outcome could be recorded.
67.The application form used to create the register could require additional information from the prosecutor to strengthen the process. Gareth Minty, a lawyer from Mischon de Reya and member of the Private Prosecutors’ Association, argued that when discharging their duty of candour private prosecutors should explain whether the matter has been brought to the attention of the law enforcement authorities.139 As suggested by the CBA, the form could require the prosecutor to identify the “investigator” and “prosecutor” for the purpose of the disclosure regime in the CPIA 1996.140 These requirements would provide more information for defendants and the courts and would enhance the transparency of private prosecutions.
68.There is a case that the proposed central register should record all prosecutions, rather than just private prosecutions. A considerable number of public bodies and prosecuting authorities, other than the CPS and SFO, conduct prosecutions. There is also a risk that if the register was based on information required to apply for a summons some private prosecutions would be missed if the police were involved in the charging process. In 2009, the Justice Committee’s report on the Crown Prosecution Service highlighted the diverse structure of prosecuting authorities and argued that the CPS should provide “leadership within the wider prosecutorial family”.141 Without a comprehensive register that records who is bringing prosecutions it is difficult for any Government department or body to have responsibility for overseeing the conduct of prosecutions. Stephen Wooler points out that there is no Minister with overall responsibility for or authority over all the prosecuting agencies within Government.142 A central register of all prosecutions would facilitate more effective oversight over the prosecutorial landscape in England and Wales. Without that oversight, it is difficult for the Government to make informed judgments about the need for reform, the need for further resources, or to assess the impact of private prosecutions on organisations, individuals, and access to justice.
The Crown Prosecution Service
69.The Crown Prosecution Service’s power to take over private prosecutions is the most effective safeguard against the misuse of the right by organisations in England and Wales. The CPS’s current role in private prosecutions is carefully calibrated. A number of witnesses emphasised that any changes that increased the burden on the CPS would be unwelcome, especially as the limited capacity of the CPS was one of factors driving the growth in the number of private prosecutions.
70.Claire de Than and Jessie Elvin recommend that Crown Prosecutors should be required to filter all private prosecutions by participating in a pre-trial review in a magistrates’ court.143 At the review, the Crown prosecutor would choose between three options: “proceeding with it as a public prosecution, disallowing it or allowing it to proceed as a private prosecution with monitoring and review”.144 Limiting the right through a mandatory review by the CPS would require an increase in resources. Such a proposal would provide stronger oversight but would also limit the availability of the right to bring a private prosecution. Automatic referral to the CPS was recommended by the Royal Commission on Criminal Procedure in 1981.145 Alison Levitt QC argues that mandatory referrals would create “added bureaucracy, added delay and added cost”.146 The CPS’s evidence firmly rejects any form of mandatory review, stating that it would be a significant drain on resources that would not be “proportionate or cost-effective”.147 It would require the CPS to effectively act as a gatekeeper which arguably sits uneasily with its existing functions and is potentially incompatible with the right to bring a private prosecution as preserved by section 6(2) of the Prosecutions of Offences Act 1985.
71.An alternative to mandatory review to the CPS that is arguably more in line with its current role would be mandatory notification. Aliant Law propose that that “the CPS’ role in monitoring private prosecutions be made easier by way of mandatory reporting of the commencement of a private prosecution to the CPS”.148 This would not necessarily trigger a review, and it would enhance the CPS’s existing role in private prosecutions. In 1998, the Law Commission proposed that the courts “should be required to notify the CPS of all private prosecutions except for those instituted by organisations licensed by the DPP”.149 The Committee welcomed the information submitted by the CPS on the number of private prosecutions referred to it. The Committee is nevertheless concerned that the existing system for referring private prosecutions to the CPS, and for recording those referrals, is so haphazard. We appreciate that the small number of referrals at present does not necessarily warrant a more sophisticated system. However, it is surprising that when the CPS takes over and discontinues a prosecution, there is no system in place that enables Crown prosecutors to join the dots between different prosecutions and identify potential patterns of problematic prosecutions. If the CPS had reviewed a Post Office prosecution, even if it had decided not to take it over the review process would have been greatly enhanced if the CPS had been able to ascertain how many similar cases had already been prosecuted by the Post Office. The Committee recommends that HMCTS should ensure that the CPS is notified when a private prosecution is initiated. The notification process should be integrated into the structure of the central register of private prosecutions.
72.We recognise that the CPS may argue that mandatory notification of private prosecutions may result in a significant addition to its workload. However, if there is a comprehensive central register of all private prosecutions, which records for example the number of other prosecutions started by each organisation and their outcome, as well as whether the prosecution used external investigators, then this could make the process of reviewing a prosecution more effective.
73.Professor Peter Hungerford-Welch explained to the Committee that there is a “real problem” with defendants being unaware that they are being prosecuted privately and that they can refer the matter to the DPP.150 This is supported by the low numbers of referrals reported to us by the CPS. Professor Hungerford-Welch argued that there should be a mechanism which ensures that as soon as prosecution is commenced and granted a summons by the magistrates’ court, the defendant is informed of his or her right to refer the prosecution to the CPS.151 We agree that every defendant who is privately prosecuted should be informed of his or her right to seek a review from the CPS. We recommend that this change be implemented by a change to the Criminal Procedure Rules. In situations where the police are involved in a private prosecution and the role of the magistrate is circumvented (which was drawn to our attention by the Criminal Law Reform Now Network) it will be especially important that the defendant is notified of his or her right to request a review of the prosecution.152 We recommend that in such a scenario there should be a duty 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.153
74.The CPS argues that by requiring all defendants to be individually informed of the CPS’s role in each case would “be almost analogous to inviting a mandatory referral process”.154 We recognise this concern and anticipate this argument being made in relation to mandatory notification. However, if the number of private prosecutions continues to rise, it will be very hard to justify that one of the primary safeguards against misuse is so rarely invoked, especially when the figures provided by the CPS show that a significant proportion of the prosecutions reviewed are discontinued. If the CPS does not have the resources or capacity to perform this role, then perhaps a suitable alternative should be found.
Conclusion
75.The central register of private prosecutions should be the first step towards developing a system for monitoring the conduct of private prosecutors. The overwhelming majority of private prosecutors seek to uphold high standards and do not allow private interests to distort or influence their decisions. Many private prosecutors and private investigators have experience of public prosecutions from having worked for the CPS and the police.
76.The example of the Post Office litigation shows that some organisations can misuse the right to bring private prosecutions. We agree with Professor John Spencer, from the University of Cambridge, that “no private organisation should be permitted to threaten criminal proceedings to extract money that it believes that it is owed”.155 Private prosecutors are not subject to the same standards and oversight in relation to their pre-trial conduct and investigations. There is a strong case that organisations which bring significant numbers of private prosecutions should be subject to inspections. These inspections could be carried out by HMCPSI or an equivalent body. Any such monitoring should be accompanied by steps to ensure that investigators and prosecutions in private prosecutions are subject to the same standards as their public counterparts.156 Inspections could form part of a system of accreditation, as proposed by Stephen Wooler CB, that could enable accredited organisations to have a “general right to bring criminal proceedings”.157 Non-accredited organisations could be subject to enhanced safeguards, which could require, for example, that the prosecutor shows that the prosecution is in the public interest before it is allowed to proceed. If an organisation is found to be misusing the power to bring private prosecutions, then the body responsible for inspecting all prosecutors and enforcing the code, be it the CPS, HMCPSI or another public body, should be able to remove the right of an organisation to bring a prosecution, or to require them to obtain consent from the Attorney General or the DPP before they can initiate a prosecution.
77.The power to prosecute is one of the most intrusive powers of the state.158 Prosecutions are carried out “for the benefit of society as a whole”.159 In that context prosecutions should be exercised “either by the state with appropriate transparency, safeguards and accountability or within a framework established by the state which ensures those things”.160 It is incumbent 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.
135 Letter from AG to the chair of the Justice Committee (dated 25 August)
141 Justice Committee, The Crown Prosecution Service: Gatekeeper of the Criminal Justice System, Ninth Report of the Session 2008–09, HC 186 para 135
143 Claire de Than and Jesse Elvin, ‘Private Prosecution: A Useful Constitutional Safeguard or Potentially Dangerous Historical Anomaly?’ [2019] Criminal Law Review 656, 679–680.
144 Claire de Than and Jesse Elvin, ‘Private Prosecution: A Useful Constitutional Safeguard or Potentially Dangerous Historical Anomaly?’ [2019] Criminal Law Review 656, 679–680.
145 HMSO, Report of the Royal Commission on Criminal Procedure (Cmnd 8092-I and II, 1981) para 7.50
149 Law Commission, Consents to Prosecution (London: TSO, 1998), LC 255, para 7.9 (2)
159 HMSO, Report of the Royal Commission on Criminal Procedure (Cmnd 8092-I and II, 1981) para 7.50
Published: 2 October 2020