Written evidence from Chambers of Jonathan Laidlaw QC (PPS0013)

 

 

  1. On 23 June 2020, the House of Commons, Justice Committee opened an Inquiry into private prosecutions in the following terms:

 

“This inquiry will examine whether there are sufficient safeguards in place to limit the likelihood of injustices resulting from private prosecutions brought by organisations that act as the investigator and the prosecutor but are also the victim of the alleged offence.”[1]

 

  1. The Chambers of Jonathan Laidlaw QC is a leading set of barristers with significant experience in bringing, and defending against, private prosecutions.  This document is our collective response to the Justice Committee’s call for written evidence.

 

  1. In summary, our principal submission is that there is nothing inherently unfair or objectionable about a private prosecution being brought by an organisation which is the victim of an alleged offence (usually known in criminal proceedings, and henceforth a ‘complainant’) and which acts as both investigator and prosecutor. We make no comment on the Post Office prosecutions which have led to this InquiryHowever, whether or not there have, or may have, been disclosure failings in any particular privately prosecuted criminal case, the Committee should resist any temptation to condemn private prosecutions per se. Private prosecutions by organisations, properly conducted, play an important role in the administration of justice and are subject to a large number of existing safeguards to ensure fairness.

 

  1. If there are improvements to be made in the area of private prosecutions, we suggest that the focus should be on weeding out wholly unmeritorious cases, often brought by unrepresented individuals, at an early stage in the court process. That could be achieved by the requirement for an inter partes hearing at the summons stage, by way of amendment to the Criminal Procedure Rules.

 

  1. The response is divided into the following sections:

 

  1. The constitutional role and importance of private prosecutions
  2. The numerous safeguards which seek to ensure the fairness of a private prosecution
  3. Conclusion

 

 

  1. The constitutional role and importance of private prosecutions

 

  1. The ability of a person to commence criminal proceedings is an ancient constitutional right, “part of a citizen's established right of access to the courts for the remedy of wrongs[2].

 

  1. While historically, private prosecutions were the norm[3], their perceived utility diminished as a result of the state acquiring conduct of most, but not all, criminal prosecutions in the 19th and 20th Centuries.

 

  1. However, the right of a person to bring a private prosecution has expressly been preserved by Parliament[4] and the courts have continued to endorse the provision and application of appropriate safeguards.

 

  1. It is submitted that, in the 21st Century, the need for private prosecutions has increased.  There are two principal reasons for this:

 

  1. The prevalence of acquisitive criminal conduct:

 

“Economic crime is a significant threat to the security and the prosperity of the UKFraud is now one of the most common crimes in the UK, with one in fifteen people falling victim a year”[5];

 

“There were an estimated 3.8 million incidents of fraud in the year ending March 2019, accounting for around one-third (34%) of all [Crime Survey for England and Wales] crime estimated in this period. This was an increase of 17% from the previous year (3.3 million incidents) and an increase of 12% from the year ending March 2017 (3.4 million incidents)”[6];

 

  1. The chronic under-resourcing of publicly funded fraud investigations and prosecutions:

 

[O]nly 13% of incidents of fraud are reported by the victim to either the police or to Action Fraud … [A] quarter of Action Fraud crime reports (those meeting the Home Office counting rules) are disseminated to local forces, around 14% of which receive “outcomes” … In the face of a 30% increase in demand in this area [City of London Police] experienced a 5% funding reduction in real terms over the previous three years[7];


“Rarely is fraud identified as a priority in [police] forces; only a small proportion of officers are involved in fraud investigation; they lack the skills to investigate complex cases; and, there is no certainty that cases will conclude with positive outcomes … In overall terms, over twenty percent of cases disseminated by [City of London Police] conclude with a prosecution or other criminal justice outcomes … Transformational change is needed in a number of areas to bring fraud back into check and serve victims well.[8]

 

  1. We recognise, of course, that private prosecutions may be commenced in relation to a great many criminal offences[9], however, our submissions are focused on fraud and other acquisitive criminal conduct because, in our experience, that is where the effects of the chronic under-resourcing of publicly funded fraud investigations and prosecutions are most acutely felt. With that background, it is submitted that private prosecutors play a vital role in the administration of justice.

 

  1. The numerous safeguards which seek to ensure the fairness of a private prosecution

 

  1. Throughout the life of any private prosecution, there are already safeguards in place from the issuing of the summons all the way through to the question of costs, to ensure the fairness of the proceedings.

 

The Private Prosecutors Association

 

  1. The Private Prosecutors Association (‘PPA’) is a membership organisation, of which a number of tenants in chambers are members, whose stated aim is to “recognise and promote best practice” in the field of private prosecutions.

 

  1. The key objectives of the PPA include:

 

 

  1. In order to achieve those aims, the PPA published a Code for Private Prosecutors (‘the Code’) in July 2019.[10]  The Code provides for best practice in all aspects of an intended private prosecution, including investigation, the relevance of parallel civil proceedings, the role of the DPP, charging and commencing proceedings, disclosure, trial management, disposal in the event of conviction and costs.

 

  1. Of particular importance, are those parts of the Code that impose a positive obligation on all those who have indicated an intention to be bound by its terms, including that:
  1. Any investigation is fair and balanced and would not bring the criminal justice system into disrepute or otherwise constitute an abuse of the court’s process;
  2. Investigations by and for private prosecutors should be conducted impartially, objectively and independently;
  3. The investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect;
  4. The private prosecutor must ensure that in discharging its disclosure obligations it complies with the following (unless any provision cannot properly be said to apply to a private prosecution): Criminal Procedure and Investigations Act 1996 (‘CPIA’); CPIA Code of Practice; the Criminal Procedure Rules; the Attorney-General’s Guidelines on Disclosure; Judicial Protocol on the Disclosure of Unused Material in Criminal Cases; the Crown Prosecution Service (‘CPS’) Disclosure Manual; and, the obligation to disclose material before the requirements of the CPIA are triggered;
  5. The private prosecutor’s approach to disclosure must be straightforward, transparent and open.  There is a continuing duty on the prosecution to keep disclosure under review. The private prosecutor should be advised in advance of the trial that disclosure could be made without reference to them, either generally in the proceedings or in certain exceptional circumstances, for example, if they are giving evidence;
  6. Parallel criminal and civil proceedings may be pursued so long as to do so is fair, proportionate and properly motivated. It would not be appropriate to launch criminal proceedings purely to influence extant or prospective civil proceedings.

 

  1. It is submitted that adherence to the safeguards enshrined in the Code, would adequately ensure that private prosecutions are conducted competently and, critically, fairly to all parties.

 

Setting aside a summons

 

  1. Even at the commencement of a private prosecution against a defendant, safeguards are in place to ensure that only appropriate cases proceed to trial:

 

  1. A decision whether to issue a summons is a judicial function involving the exercise of a discretion which is subject to control by judicial review;
  2. Recent amendments to the Criminal Procedure Rules (‘the Rules’) ensure that the magistrate considering an application is provided with more information so that improper applications are weeded out before they even get started;
  3. The magistrate considering issuing a summons has a discretion to hear the proposed defendant if he thinks it necessary for the purpose of making a decision;
  4. The defendant against whom a summons has been issued has the right to apply to the Magistrates’ Court to have the summons set aside (i.e. to withdraw it).

 

Judicial function

 

  1. In the much-cited case of R v. West London Metropolitan Stipendiary Magistrate, ex parte Klahn [1979] 1 W.L.R. 933, Lord Widgery CJ. gave guidance on the matters a magistrate should consider in the exercise of his discretion when, at pp935-936, he stated:

 

“It would appear that he should at the very least ascertain” (1) whether the allegation is an offence known to the law and is so whether the essential ingredients of the offence are prima facie present; (2) that the offence alleged is not “out of time”; (3) that the court has jurisdiction; (4) whether the informant has the necessary authority to prosecute.  In addition to these specific matters it is clear that he may and indeed should consider whether the allegation is vexatious”.

 

Criminal Procedure Rules

 

  1. In 2018 and 2019, there were important changes to the Rules regarding applications for summonses (rule 7.2). This is of paramount importance for private prosecutions, given that the summons is where every private prosecution begins its life.

 

  1. Before April 2018, the Rules did not set down any requirements regarding the content of an application for a summons. The April 2018 update to the Rules saw, for the first time, a list of requirements to be included in the summons or warrant, as follows:

 

  1. The grounds for asserting that the defendant has committed the alleged offence or offences;
  2. Disclosure of previous applications by the same applicant regarding the current allegation, and details of any current or previous proceedings brought by another prosecutor in respect of the current allegation;
  3. A statement that: the information is true to the best of the applicant’s knowledge and belief, that the evidence relied upon will be available at trial, and that the details given re other proceedings are true; and,
  4. That the application discloses all the information that is material to what the court must decide.

 

  1. The 2018 update only applied to an unrepresented private prosecutor but, in April 2019, an update to the Rules extended these requirements to include all private prosecutors, including those represented by lawyers.

 

  1. Point 4 reflects the prosecutor’s duty of candour in bringing an application for a summons, in that he must also bring to the court’s attention at the outset any factors militating against the grant of a summons (c.f. R v. West London Metropolitan Stipendiary Magistrate; R (on the application of Martin Kay, Scan-Thors (UK) Ltd) v. Leeds Magistrates’ Court v. Marek Karwan [2018] EWHC 1233 (Admin))

 

Hearing from the defendant before issuing a summons

 

  1. Although a proposed defendant has no right to be heard the magistrate has a discretion to: (a) Require the proposed defendant to be notified of the application; and, (b) Hear the proposed defendant if he thinks it necessary to the purpose of making a decision. Such notifications and hearings have become more common in London and there is perhaps an argument that inter partes hearings on the issuing of a summons should become the norm.

 

Defence application to set aside a summons

 

  1. If a summons is issued by the Magistrates’ Court the defendant has the right to challenge that decision and apply to the Magistrates’ Court to set it aside by quashing or withdrawing it. The court has the power to withdraw a summons and also the power to stay the proceedings (which is considered elsewhere in this submission).

 

  1. The Divisional Court has recognised the importance of the Magistrates’ Courts taking action where it appears that a summons should not have been issued. The court has jurisdiction over a wide category of cases which includes investigation of the bona fides of the prosecution and of whether the prosecution has been instituted oppressively or unfairly.

 

  1. In R (on the application of Martin Kay, Scan-Thors (UK) Limited) v. Leeds Magistrates’ Court, the Divisional Court observed that:

 

“As this case demonstrates, the grant of summonses, typically conducted ex parte, can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken. In my view, its importance cannot be overstated.

 

The DJ undoubtedly had the power to deal with the breach of the duty of candour in this case by quashing the summonses. Logically, that was the first issue that she should have engaged with, but she failed to engage with it at all.”

 

  1. Thus, if the summons should not have been issued, the Magistrates’ Court is the correct forum for the matter to be regularised at the earliest opportunity.

 

The Director of Public Prosecutions (‘DPP’) discontinuing proceedings

 

  1. The statutory right to bring private prosecutions is preserved by s.6(1) of the Prosecution of Offences Act (POA) 1985. This provision is however counterbalanced by the inbuilt protection for an individual against whom a summons found s.6(2) of the Act, in that the provision empowers the DPP to intervene in a private prosecution.

 

  1. It is important to note that this power is one which can be exercised in different ways; either to continue or discontinue the prosecution.

 

  1. The private prosecutor cannot prevent the DPP from considering the case to see whether he should intervene[11]; when asked by the defence or the court to do so, the CPS must make a decision on whether or not to take over a private prosecution. This involves a detailed analysis of the material upon which the private prosecution is based and is conducted at a high level. Initially the matter is considered by a suitably qualified reviewing lawyer but that decision must be endorsed or ratified by a Chief Crown Prosecutor (or Deputy CCP) or relevant Head of Casework Divisions (or their Deputy). The decisions made are both reasoned and recorded in writing.

 

  1. If the CPS is to consider taking over the case and continuing the prosecution, the following features must be satisfied:

 

  1. The evidential sufficiency stage of the Full Code Test is met; and
  2. The public interest stage of the Full Code Test is met; and
  3. There is a particular need for the CPS to take over the prosecution.

 

  1. This three-stage test assessment provides proper protection to the person being prosecuted and further ensures that in cases where there is a merit to the prosecution, it is continued. On the other hand, if the features listed are absent then the prosecution will be discontinued.

 

  1. The power of the DPP to both take over private prosecutions and to discontinue proceedings provides prominent protection of the fundamental safeguards that serve to ensure that private prosecutions are meritorious and evidentially well-founded rather than ill-founded or vexatious.

 

  1. Alongside this unfettered jurisdiction, other measures are freely available in order to challenge an unmeritorious of ill-founded private prosecution and bring it to an end; these include an application to withdraw or quash the summons; an application to dismiss the charge/s; an application for the proceedings to be stayed on the basis that to proceed would be an abuse of the process of the court and an application for Judicial Review.

 

  1. It is suggested that the review power of the DPP is plainly a significant safeguard for the rights of the accused individual. If exercised, the safeguards are no less than those associated with a prosecution brought by the Crown.

 

  1. Given the scope of the DPP’s power to intervene and to discontinue proceedings, it is difficult to see what further specific safeguards could be introduced that are not currently present within the statutory framework and the associated measures of challenge to the merits of the private prosecution. These measures are supported by the establishment of the PPA Code.

 

Disclosure

 

  1. Disclosure is the process of ensuring the defence are provided with material that might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accusedIt is this process which ensures all relevant evidence is before the Tribunal and that the defendant has a fair trial.

 

  1. The Committee will be well aware of the high-profile failings in this area in prosecutions brought by public authorities, this having been an important area of previous scrutiny by the Committee[12]. Disclosure breach and its consequence is no stranger to the criminal process. What is to be remembered is that despite a plethora of safeguards, it does occur and further, that it occurs just as frequently in prosecutions brought by the Crown. Disclosure failings are not peculiar to the domain of the private prosecutor.

 

  1. It is our experience that large organisations bringing private prosecutions, where properly represented and advised, are in at least as good if not a better position than public authorities to manage and comply with their disclosure obligations.

 

  1. The most fundamental point is that the underlying statutory obligations in the CPIA apply to private prosecutors in exactly the same way, with exactly the same force, as to public prosecutors. Private prosecutors are therefore under the same duty to retain and review relevant material, provide a non-sensitive schedule of unused material, and disclose any disclosable material to the defendant.

 

  1. There is room for debate about whether the CPIA Code of Practice (stated to apply to “the manner in which police officers are to record, retain and reveal to the prosecutor material”) applies to private prosecutors when investigating a criminal offence. Interestingly there is no clear need for that qualification in section 23 of the CPIA, and given the Code is currently being revised the position of private prosecutors could be formalised. The Attorney-General’s Guidelines on Disclosure seem to apply more straightforwardly. But in our experience, all private prosecutors inevitably undertake to abide by the principles in these documents as well as the CPIA anyway, and that is reflected in the PPA Code. No doubt the court would respond robustly to any prosecutor who refused to comply with the CPIA Code of Practice without good reason.

 

  1. The position of the private prosecutor in law is therefore identical to a public prosecutor. The only question is whether a private prosecutor is properly placed to abide by those duties. In our view that is perfectly possible, provided there is a proper delineation of roles within the prosecution team. Large organisations are in many ways better placed to do this than individuals bringing a private prosecution. There can, for example, be institutional distance between the alleged victim of the offence and the prosecution team. Large organisations will have the appropriate time and resources to devote to even the most complex disclosure process.

 

  1. More fundamentally, private prosecutors can and should instruct independent solicitors and counsel who have professional duties to their own professional bodies to ensure the disclosure process is properly complied with. Lawyers experienced in private prosecutions are able to establish a structured prosecution team to ensure there are as many, if not more safeguards, as in a public prosecution. They will depend on the nature and complexity of the case but may include:

 

  1. Separation of the investigation and prosecution team;
  2. Appointment of an independent disclosure officer and/or independent disclosure counsel;
  3. The creation of a Disclosure Management Document which explains how the prosecution is complying with its duties and is provided to the defence and the court.

 

  1. While an organisation that has been the victim of an alleged crime will undoubtedly have an interest in obtaining a positive outcome in a prosecution, we have not come across wider evidence that those interests lead to any unwillingness to properly comply with the disclosure regime. All litigants, in both civil and criminal proceedings, are subject to disclosure duties that could operate against their other interests but the court is able to rely on litigants to comply with their duties. No doubt public investigators desire the conviction of those they believe to be guilty but in the majority of cases still comply with their disclosure duties. The same is true of private prosecutors. Their lawyers would be unable to continue knowing disclosure has not been complied with.  Any significant failures in disclosure are likely to lead to the failure of a prosecution and costs consequences. A knowing failure would likely amount to the criminal offence of perverting the course of justice, amongst others.

 

  1. The disclosure process is of course capable of challenge by the defence through an application under s.8 of the CPIA or ultimately an application to stay the case. The process is subject to the supervision of the court by way of the same powers. The DPP would also undoubtedly take over any case where he was not satisfied the prosecution were able or willing to comply with their disclosure duties.

 

  1. A private prosecutor’s duties are in many ways not just equivalent to but more onerous than those of a public prosecutor. Firstly, it is our experience that the court is willing to apply a higher degree of scrutiny to a private prosecutor to ensure disclosure is being properly managed. The provision of a Disclosure Management Document is almost certainly required in all but the most straightforward Magistrates’ Court cases.

 

  1. Secondly, where the prosecuting organisation is the alleged victim of the offence, it will automatically be in possession of more relevant material than a public prosecutor would, which will all need to be reviewed and disclosed where appropriate. A public prosecutor must ask any complainant for relevant communications or devices and may be met with resistance. Where the complainant is prosecuting, all of the material in their possession will be automatically subject to the disclosure regime.

 

  1. One area where the Committee may have concerns is whether an unrepresented private prosecutor, especially an individual lay person, is able to properly comply with their disclosure obligations. It is our experience that such private prosecutors are subject to robust challenge by the defence and the court but it might be that consideration should be given to a specific adjustment of the rules for such prosecutors, including the requirement of an inter partes hearing when a summons is applied for.

 

  1. Where a large organisation is properly represented though, it is our collective experience that such an organisation is as well placed as public authorities to manage the disclosure process. If anything, a private prosecutor will have recourse to better resources and be subject to greater scrutiny by the defence and the court.

 

Safeguards within the trial process

 

  1. Article 6 of the European Convention on Human Rights as enshrined in the Human Rights Act 1998 protects the right to a fair trial. The criminal trial process in the UK has numerous safeguards built-in to ensure the protection of this fundamental right.

 

  1. The safeguards largely involve applications that can be made by the defence and cover situations where a case is evidentially weak or inherently unfair. Judicial management and oversight of a trial is also an important safeguard.

 

  1. Application to dismiss – a case in the Crown Court can be thrown out before it even begins where the evidence is insufficient for a jury to properly convict (see section 2, Schedule 3, of the Crime and Disorder Act 1998).
  2. Submission of no case to answer – a case can be thrown out after the close of the prosecution case if there is insufficient evidence upon which a tribunal could convict.
  3. Abuse of process argument – a case can be stayed at any time where the continuance of the prosecution would amount to an abuse of the process of the court. This route is often deployed in private prosecutions where it said the case is brought in bad faith or due to an overriding improper motive.
  4. Judicial directions – the trial Judge has a duty to oversee a fair trial and will provide judicial directions to a jury (in the Crown Court) as appropriate. In the Magistrates’ Court this role is fulfilled by the legal advisor. Judicial directions serve to ward off unfairness by ensuring that only relevant and probative material is taken into account. For example, the jury must be directed appropriately concerning weak or seemingly tainted evidence.

 

Costs

 

  1. A private prosecutor will be mindful of costs in two particular respects. An unmeritorious or badly managed prosecution is unlikely to be able to recover its costs from central funds under ss. 16 or 17 of the POA. But perhaps even more importantly, the unsuccessful private prosecutor should expect to have to bear the costs of a defendant in criminal proceedings where, on proper analysis, the prosecution never had any realistic chance of success or was vexatious or otherwise improper (see Haigh v Westminster Magistrates’ Court [2017] EWHC 232 (Admin) for an important example). This principle is an important deterrent against unmeritorious prosecutions.

 

  1. The successful party will inevitably seek to recover costs from central funds under ss.16 or 17 of the POA, or against the unsuccessful defendant under s.18, or under s.19 on the basis of “an unnecessary or improper act or omission”.  However, even the successful private prosecutor needs to be aware that, in determining an application for costs from central funds, the court will expect the private prosecutor to seek tenders or quotations before selecting the solicitor and advocate instructed and ensure that steps were taken to ensure that the terms on which the solicitors and advocates were engaged were reasonable.

 

  1. Conclusion

 

  1. It is not the purpose of this Response to comment on individual cases, and we do not understand that to be the Committee’s aim. Rather we have considered whether there is any wider systemic problem, or inherent objection, to private prosecutions brought by an organisation that is also the complainant. In short, the answer to that question is an emphatic no. Private prosecutions continue to play an important role and there are a number of existing safeguards against their misuse. It is our submission that there is nothing inherent in a private prosecution that should lead to unfairness or objection. Inherently, they should be less likely to fall into error, due to the greater degree of scrutiny they undergo, compared to prosecutions brought by the state.

 

Sallie Bennett-Jenkins QC

for and on behalf of

David Whittaker QC

the Private Prosecution Group

Gavin Irwin

Chambers of Jonathan Laidlaw QC

Lewis MacDonald

 

Hannah Thomas

 

 

July 2020

 

 


[1] https://committees.parliament.uk/work/401/private-prosecutions-safeguards/

[2] Regina (on the application of Gujra) v Crown Prosecution Service [2013] 1 A.C. 484 (2012) at page 5, final paragraph, see also the speeches of Lord Wilson JSC (at paragraphs 10 to 22) and Lord Mance JSC (at paragraphs 87 to 109) for a history of the development of private prosecutions.

[3] Hay, Controlling the English Prosecutor (1983) 21 Osgoode Hall LJ 165, 167–172

[4] Prosecution of Offences Act 1879 and Prosecution of Offences Act 1985

[5] Ministerial Foreword to the UK Economic Crime Plan, 2019 to 2022, see also Home Office Research Report, ‘The economic and social costs of crime’, Second edition, Research Report 99, July 2018, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/732110/the-economic-and-social-costs-of-crime-horr99.pdf

[6] Office for National Statistics, ‘Nature of fraud and computer misuse in England and Wales: year ending March 2019’

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/natureoffraudandcomputermisuseinenglandandwales/yearendingmarch2019#trends-in-fraud

[7] Home Affairs, Select Committee, Report Policing for the Future’, 25 October 2018, https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/515/51507.htm#footnote-254

[8] City of London Police, ‘Fraud: A review of the national ‘lead force’ responsibilities of the City of London Police and the effectiveness of investigations in the UK’, https://www.cityoflondon.gov.uk/about-the-city/about-us/Documents/action-fraud-report.pdf

[9] Not those where: the DPP’s permission is required (the DPP having a settled policy of not giving such permission to private prosecutors); the consent of the Attorney-General is required; the powers of the Director of the Serious Fraud Office are being exercised.

[10] https://private-prosecutions.com/wp-content/uploads/PPA-Code-for-Private-Prosecutors.pdf

[11] The DPP’s decision may be challenged by way of Judicial Review.

[12]https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85904.htm#_idTextAnchor001