Written evidence from Stephen Colman, Senior Lecturer in Law, University of Suffolk (PPS0014)

I am a Senior Lecturer in Law at the University of Suffolk.  My areas of specialism are Criminal Law, Criminal Procedure and Evidence, and Public Law.  I am currently writing up my PhD research into the ways in which victims can challenge decisions not to prosecute; one aspect of my thesis is private prosecutions.  Prior to becoming a legal academic in 2016, I was employed by the Crown Prosecution Service as a Senior Crown Prosecutor since 2003.

This submission will focus on the current regulatory framework for private prosecutions together with possible additional safeguards which could be implemented in the future.

The role of the Crown Prosecution Service in taking over private prosecutions and the effectiveness of existing safeguards that regulate private prosecutions

Some of the concerns about large organisations bringing private prosecutions are similar to the reasons for creating the CPS as a prosecuting body independent of the police. The Royal Commission established under the chairmanship of Sir Cyril Philips in 1980 to examine the investigation of offences and prosecution of offenders identified concerns about the police acting as both the investigator and prosecutor of criminal offences.[1]  The report noted the lack of uniformity across the country with a mixture of prosecuting solicitors departments and privately instructed solicitors conducting the prosecutions.  The report also observed that the relationship between the Chief Constable and his prosecuting solicitor was one of client and solicitor.[2]  As a result, the police were not obliged to seek legal advice from the prosecuting solicitor and even if they did so they were not obliged to follow it.  Ultimately, the decision whether to prosecute was one for the police and not the legal advisor.  The Prosecution of Offences Act 1985 which established the CPS overcame this phenomenon by dividing the investigation and prosecution roles between the two separate organisations.

Section 10 of the Prosecution of Offences Act 1985 requires the DPP to publish a Code for Crown Prosecutors to guide prosecutors on when proceedings should be brought or discontinued.  Central to the code is the Full Code Test as a standard way of determining whether a prosecution should be brought by the application of two stages:  the evidential and public interest stages.[3]  A public prosecution will only be brought by the CPS if both stages of the test are met.  Unlike the public prosecutor, there is no overarching test that the private prosecutor must apply in relation to either the evidence in the case or the public interest. As such there is a risk of inconsistency in relation to private prosecutions with different organisations and individuals applying different standards as to when a prosecution should be brought.  Furthermore, the Code for Crown Prosecutors is supplemented by a wide range of policy and guidance documents to ensure consistent and rational prosecutorial decision-making.  A private prosecutor could consider any such policy, but would not be bound by it or indeed required to take it into account when making a decision as to whether to bring a prosecution.   

The CPS power to take prosecutions over

The most significant safeguard against the improper use of private prosecutions is the power of the DPP to take over private prosecutions.[4]  Although the DPP can use this power to take over the case and prosecute it, it can also be exercised in combination with the power to discontinue proceedings under section 23 of the Act to bring the prosecution to an end.  Therefore, a fundamental issue is the circumstances in which the DPP will take over the prosecution and potentially terminate it.  As neither the legislation nor the Code for Crown Prosecutors specifies the circumstances in which the CPS should take over the prosecution or the criteria to be applied, reference needs to be made to the CPS policy on private prosecutions.

The current policy applies the same test to private prosecutions as public prosecutions and states:  ‘A private prosecution should be taken over and stopped 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.’[5]  Therefore, when the CPS reviews a private prosecution it will determine whether the prosecution should continue in the same way as if the prosecution was brought by the CPS.  In the case of Gujra a 3:2 majority in the Supreme Court held that the CPS policy to apply the same test to private prosecutions was lawful and did not frustrate the power of citizens to bring private prosecution preserved by section 6 of the Prosecution of Offences Act 1985.[6]  The DPP may, therefore, take over and terminate a private prosecution on the basis that the CPS review has concluded that there is insufficient evidence for a realistic prospect of conviction or that it is not in the public interest to prosecute.  Potentially, this provision is a powerful safeguard against evidentially weak private prosecutions or those brought in circumstances which run counter to the public interest. 

The CPS may alternatively decide to take a prosecution over and continue it as a public prosecution.  However, the CPS will only do so if both stages of the Full Code Test are met and ‘there is a particular need for the CPS to take over the prosecution.’[7]  Therefore, if the CPS concludes that the test for prosecution is met, it may not take over the prosecution unless there are particular reasons why the matter should be brought by the CPS rather than the private prosecutor.  When the prosecution is being brought by an established organization with a background of prosecuting matters of a similar type, there may be no obvious need to intervene.

A primary limitation of the power to take prosecutions over is that the CPS is not automatically notified of private prosecutions.  In reality, this power relies on either the defendant, the court or a third party requesting that the CPS review the case.  An individual defendant may not be aware of the prospect of a CPS review and even if such a request is made there would likely to be a degree of delay before the case is reviewed and resolved.  A further limitation is that the review of the evidence and public interest aspects of the prosecution does not regulate how the private prosecutor conducts the prosecution; the review potentially takes place at one point in time and does not involve ongoing oversight of the case by the CPS.  There is the possibility that having been allowed to continue the prosecution, the private prosecutor subsequently makes questionable decisions which are at odds with how the public prosecutor would have conducted the proceedings.  Such decisions could be detrimental to the interests of the defendant who, in such circumstances, could only attempt to refer the matter back to the CPS for a further review or rely on the standard safeguards within the trial process that are available to all defendants.

Consents to prosecute

An existing measure that regulates private prosecutions is that the consent of either the DPP or Attorney General is required by statute to bring proceedings for some offences.[8]  The list of offences for which there is a statutory consent requirement was described by the Law Commission as ‘haphazard’ as the regime lacks clear principles and consistency.[9]  Although the consents regime could be seen as an effective safeguard in relation to those offences to which it applies, in its current form it offers no protection in relation to offences which do not have a statutory consent requirement.  Therefore, the current arrangements are of limited value in regulating private prosecutions more generally.

Other sanctions

There is the potential for the courts to impose costs orders against private prosecutors as a result of inappropriate conduct.  In Holloway, the High Court indicated that private prosecutors have an obligation to conduct an objective analysis of the evidence to determine whether there is a realistic prospect of conviction and failing to refer the matter to the authorities or to take legal advice may ‘give rise to an inference that a private prosecutor was determined to go ahead regardless of the prospects of success.’[10]  The possibility of a costs order therefore represents a real risk to the private prosecutor if the court subsequently concludes that a case was pursued which did not reach the required evidential threshold.  However, as with a potential claim of malicious prosecution, sanctions of this type do not really regulate private prosecutions as such but provide an ex post facto sanction for private prosecutions that were either inappropriately brought or poorly conducted.

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

Disclosure

The private prosecutor has a duty to comply with both the statutory disclosure regime under the Criminal Procedure and Investigations Act 1996 and the common law duty of disclosure under ex p Lee.[11]  The prosecutor is required under section 3 of the Act to disclose to the defence any unused material which ‘might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.’

The nuances of the disclosure regime are complex to even experienced prosecutors with disclosure failures being linked to miscarriages of justice.[12]  Decisions relating to the disclosure of unused material requires specialist knowledge of the disclosure regime and may not be available to private prosecutors.  A review in 2018 recommended a joint CPS/Police disclosure Improvement Plan and national processes for managing disclosure issues relating to digital media.[13]  This resulted in a National Disclosure Improvement Plan which committed to mandatory disclosure training for CPS prosecutors.[14]  This highlights how the disclosure of unused material can be a complex area requiring  a high the level of specialist training that the CPS has put in place to ensure that prosecutors are competent in this area.  It is unlikely that the majority of private prosecutors will have this level of training and thus the risk miscarriages of justice could be increased. 

The role of the courts in private prosecutions;

Issuing proceedings

To commence a private prosecution, the private prosecutor needs to lay an information for a summons or warrant under section 1 of the Magistrates’ Court Act 1980.  This is not an automatic process and a formal application does have to be made which can result in a refusal as the court does have a gate-keeping role in the procedure.  The judgment of Silber J in R (Charlson) v Guildford Magistrates’ Court sets out the principles that the magistrates’ court should apply when considering such an application.[15]  The court should consider a number of factors such as whether the offence is known to law, the essential ingredients are present, whether it is time-barred, whether the court has jurisdiction, whether any statutory consents to prosecute have been obtained and any other relevant facts.[16]  The court should also refuse the application for a summons when a prosecution would be vexatious or improper.[17]  The Administrative 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.[18] 

Arguably, this is not currently the most effective way of regulating private prosecutions, particularly those brought by organisations rather than private individuals.  The court only has limited information available to determine whether a summons should be issued and does not routinely engage in a full enquiry into the reasons for the prosecution or factors such as the strength of the evidence.

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;

There are a number of possible additional safeguards which could be implemented to increase the regulation of private prosecutions.  Some options would strengthen the existing provisions that are already in place; others would be new initiatives. Realistically, reinforcing the regulation of private prosecutions requires increasing the gatekeeping role of either the courts or the CPS.  De Than and Elvin have recommended a statutory code to regulate private prosecutions which would involve the CPS or the court as a filtering mechanism.[19]  There are different options as to the form that this could take; an overview of some of these options is set out below.  This could involve administrative procedures being put in place to notify the CPS of private prosecutions to facilitate a review of the case under the Code for Crown Prosecutors.  This would ensure that all private prosecutions were reviewed by the CPS as the primary prosecution organization in England and Wales.  There could be a statutory requirement on the courts to inform the CPS of impending private prosecutions.  On receipt of an application for a summons from a private prosecutor, the magistrates’ court would notify the CPS of the hearing date and provide copies of the relevant papers. The CPS could then be in attendance at the hearing which would also alert the defendant to the possibility of requesting a CPS review.  One difficulty of this approach would be facilitating the CPS to have access to the full case file.  It may be necessary to introduce a statutory obligation on private prosecutors to provide certain key documents to the court or the CPS to enable an effective review to take place.

An alternative approach would to amend the Prosecution of Offences Act 1985 to require private prosecutors to apply direct to the CPS for authority to bring a prosecution.  The Philips Commission recommended that private citizens should be required to apply to the Crown Prosecutor prior to bringing proceedings who would apply the same test as for public prosecutions.  The Commission also suggested that there would be a right of appeal to the magistrates’ court against the decision of the Crown Prosecutor.[20]  These principles could apply to all private prosecutions including those brought by large organisations.  This approach would essentially introduce a consent requirement based on the identity of the prosecutor rather than the specific offence.  Another option would be to extend the remit of the consents regime already in place for some offences to a wider range of offences.  A more radical option would be to repeal the right to bring private prosecutions or to limit it to a small number of approved organisations.

Alternatively, the magistrates’ court could be used as the primary gatekeeper for private prosecutions with the equivalent of a leave hearing being held prior to a summons being issued.    The court could be required to conduct a form of case management process whereby the court examines the evidential and public interest bases of the case in order to determine whether permission to prosecute should be granted.  This procedure could include the making of court directions in relation to aspect of the case such as disclosure of evidence and unused material.  After the summons had been issued, the court could continue to monitor the conduct of the prosecution with the possibility of referring the case to the CPS for consideration of whether to take the prosecution over in the event that the prosecution was being inappropriately conducted.

July 2020