Private prosecutions: safeguards Contents

Conclusions and recommendations

The Post Office prosecutions

1.The startling figures on the scale of the Post Office’s prosecutions, together with concerns raised by the Environmental, Food and Rural Affairs Committee in relation to the RSPCA in 2016 and reports that the number of private prosecutions is rising, justify a proactive approach to examining the effectiveness of the regulation of this area of the criminal justice system. (Paragraph 15)

The state of private prosecutions

2.It is a strength of the current system that it enables corporate victims of crime to pursue justice when public authorities decline to intervene. The lack of a prosecution can represent injustice just as much as a prosecution wrongly brought. However, in a modern criminal justice system whether an offence is prosecuted or not should not depend on whether the victim has the financial resources to conduct a prosecution. (Paragraph 28)

3.The Committee agrees with the CPS that the Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds. We acknowledge the proposal made by the Centre for Women’s Justice that private prosecutors’ recoverable costs should be capped at legal aid rates. We think there should be no disparity between the claims that can be made from central funds by prosecutors and defendants. We also support the proposal made by the CLRNN that defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS. (Paragraph 37)

The effectiveness of existing safeguards

4.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. (Paragraph 60)

Strengthening safeguards

5.We recommend that HMCTS establish a central register of all private prosecutions in England and Wales. (Paragraph 65)

6.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. (Paragraph 71)

7.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. 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. (Paragraph 73)

8.There is a strong case that organisations which bring significant numbers of private prosecutions should be subject to inspections. 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. (Paragraph 76)

9.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. (Paragraph 77)

Published: 2 October 2020