Written evidence from Kingsley Napley LLP (PPS0011)

  1. On 24 June 2020, the Justice Committee made a call for evidence in respect of the safeguards in place for a private prosecution, in particular:

 

    1. The way in which large organisations conduct private prosecutions;

 

    1. The effectiveness of existing safeguards that regulate private prosecutions;

 

    1. Alternative legislative, legal and administrative safeguards that could be used to regulate the way in which large organisations use the right to bring private prosecutions;

 

    1. Whether the existing investigatory standards and duties of disclosure that apply to private prosecutions are effective;

 

    1. The effectiveness of different safeguards in preventing miscarriages of injustice resulting from the right to bring private prosecutions;

 

    1. The role of the Crown Prosecution Service in taking over private prosecutions;

 

    1. The role of the Attorney General in supervising private prosecutions;

 

    1. The role of the courts in private prosecutions; and

 

    1. The way in which private prosecutions are regulated in other jurisdictions.

Background

  1. Kingsley Napley LLP is one of the leading criminal law firms in the country and we have significant experience in this area having advised both private prosecutors and defendants in private prosecutions. Our team includes founding members of the Private Prosecutors’ Association.

 

  1. In many respects, the term, ‘private prosecution’ is a misnomer as prosecutions in the Crown Court are brought on behalf of the Crown.  We submit that this point is relevant in a proper understanding of the role of a ‘private prosecutor’.  Their obligations are no less than that of a member of the Crown Prosecution Service or other state prosecutorial body.

Summary of submissions

  1. We welcome the Justice Committee’s inquiry and recognise the significant concerns that follow the judgments in Bates v Post Office.[1]  However, we submit that safeguards currently in place are sufficient to protect putative defendants from an abusive prosecution. 
  2. We do not comment in any detail on the CCRC referrals following the Bates judgments, save to note that the elements of criticism fall as much, if not more, on a failure of the disclosure process.  We urge caution in eliding criticism of the prosecutions with criticism of the fact that they were ‘private’ prosecutions.

 

  1. Private prosecutors have the same duties and obligations as members of public prosecutorial bodies.  The primary difference is that a public prosecution can be referred to the CPS – and discontinued – if there is any concern that the evidential test[2] or the public interest test[3] has not been met.

 

  1. Similarly, a public prosecution may be challenged at the very first stage (i.e. when an application for a summons is made).[4]  Even when an application for a summons is done on an ex parte basis, there is a duty of candour which requires the applicant to disclose any material which is potentially adverse to the application or that might militate against the grant.  A failure to comply with this duty of candour would be a critical factor in determining whether the issuance of a summons was an abuse of the process of the court.[5]    Once a summons has been issued, all of the safeguards of a criminal trial are in place (for example, an application to dismiss; or an application that the prosecution is an abuse of the process of the court).

 

  1. In our experience, private prosecutions are subject to significant scrutiny by the defence and by the court: a referral to the CPS is often made;[6] the disclosure process is robustly challenged; and questions of abuse are ventilated.  The result is that, in our experience, private prosecutors go further than public prosecutors in demonstrating their compliance with the prevailing rules and regulations.[7]

 

The way in which large organisations conduct private prosecutions

 

  1. There is no difference in the safeguards that apply to a private prosecution conducted by an individual and those conducted by commercial organisations.  If an organisation has been the victim of crime, there is no reason in principle why an investigation and prosecution should not follow. 

The effectiveness of existing safeguards that regulate private prosecutions

  1. Part 7.2(4) of the Criminal Procedure Rules 2015[8] sets out the pre-summons obligations on a private prosecution; these are to:
    1. concisely outline the grounds for asserting that the defendant has committed the alleged offence or offences;
    2. disclose—
      1. details of any previous such application by the same applicant in respect of any allegation now made, and
      2. details of any current or previous proceedings brought by another prosecutor in respect of any allegation now made; and
    3. include a statement that to the best of the applicant’s knowledge, information and belief—
      1. the allegations contained in the application are substantially true,
      2. the evidence on which the applicant relies will be available at the trial,
      3. the details given by the applicant under paragraph (6)(b) are true, and
      4. the application discloses all the information that is material to what the court must decide.

 

  1. A failure to comply with these safeguards may have many effects, including: the application being rejected; an adverse costs order; or the prosecution being considered to be an abuse of the process of the court.

 

  1. If the failure to comply came from a purposeful act to deceive the court then criminal and/or regulatory sanctions may follow.

Alternative legislative, legal and administrative safeguards that could be used to regulate the way in which large organisations use the right to bring private prosecutions

  1. We believe the current legal and regulatory framework is robust and sufficient to ensure that private prosecutions are properly brought.

Whether the existing investigatory standards and duties of disclosure that apply to private prosecutions are effective

  1. The disclosure obligations in criminal proceedings apply to a private prosecutor.  These obligations include a requirement to follow all reasonable lines of enquiry.  Criticism of the disclosure process was considered by this Committee in the Eleventh Report of Session 2017 – 19.[9]

The effectiveness of different safeguards in preventing miscarriages of justice resulting from the right to bring private prosecutions

  1. We don’t understand the premise of this question.  Private prosecutions are subject to the safe-safeguards as a public prosecution, if there are failings then they are systemic rather than being a particular feature of a private prosecution.  We submit that private prosecutions already have greater safeguards in place due to CrimPR7.2(4) and the ability for a prosecution to be referred to the Crown Prosecution Service.

The role of the Crown Prosecution Service in taking over private prosecutions

  1. When a referral is made to the Crown Prosecution Service, they can: (1) take the prosecution over and continue it; (2) take the prosecution over and discontinue it; or (3) not take the prosecution over.[10]  The practical effect of this process is that the CPS reviews the prosecution, applies the Code for Crown Prosecutors, and has the authority to take over and stop and unmeritorious prosecution.  As a referral may be made by a private prosecutor; the court; or a defendant, this process acts as an additional and objective safeguard to ensure that prosecutions satisfy the Code for Crown Prosecutors. 

The role of the Attorney General in supervising private prosecutions

  1. There is a category of offences which can only be brought with the consent of the Attorney General and this applies to private prosecutors as it does to public prosecutorial bodies.   The Attorney General may also enter a nolle prosequi to stay proceedings in the Crown Court.  This can occur even after a CPS review.[11]  Compliance with guidance issued by the Attorney General will be a material consideration in any application that the prosecution has been brought improperly.

The role of the courts in private prosecutions

  1. As set out above, the panoply of safeguards in criminal proceedings apply equally in private prosecutions.

The way in which private prosecutions are regulated in other jurisdictions

  1. We have no comments on this question.

 

June 2020

 

 


[1] Bates v Post Office [2019] EWHC 606 (QB); Bates v Post Office [2019] EWHC 3408 (QB) and the subsequent CCRC referrals to the Court of Appeal (Criminal Division).

[2] https://www.cps.gov.uk/publication/code-crown-prosecutors

[3] https://www.cps.gov.uk/publication/code-crown-prosecutors

[4] R (ota Johnson) v Westminster Magistrates’ Court [2019] EWHC 1709 (Admin).

[5] R (ota Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin).

[6] Either proactively by the prosecutor; on recommendation of a judge; or by the defence.

[7] For example, the Disclosure Management Document (“DMD”) in a private prosecution is, in our experience, contains significantly more detail than would be contained in a DMD served by a public prosecutor.

[8] As amended in April 2018, April 2019 & April 2020.

[9] https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/859.pdf

[10] https://www.cps.gov.uk/legal-guidance/private-prosecutions#:~:text=Procedure-,Principle,a%20statutory%20power%20to%20prosecute.

[11] https://www.cps.gov.uk/legal-guidance/private-prosecutions#:~:text=Procedure-,Principle,a%20statutory%20power%20to%20prosecute.