Written evidence from Mike Northern Legal (PPS0018)
This submission is made by Mike Northern Legal, a regulated solicitors’ practice for which Michael (Mike) Northern is the Principal Solicitor. The evidence is submitted by reason of Mike Northern’s extensive experience as a private prosecutor, and not made on behalf of any existing or former clients. The legal firm was established in 2003; Mike Northern has been a solicitor since 1996 having formerly worked as a trading standards officer, and then as a legal consultant in law firms. After a period working in City of London law firms, Mike Northern established this practice. During the period 1989 to 2014 Mike Northern acted as a prosecution solicitor for hundreds of private prosecutions in the criminal courts, both magistrates’ and crown courts, as well as in appeals before the Divisional Court, Court of Appeal and the House of Lords (as the Supreme Court was then constituted).
These prosecutions were conducted exclusively for trade bodies representing the intellectual property interests of media undertakings, and proceedings were brought against alleged counterfeiters of films, music and, to a lesser extent, computer games. The offences prosecuted ranged from criminal copyright infringement offences under section 107 Copyright, Designs and Patents Act 1988, criminal trademark infringement under s92 Trade Marks Act 1994, s1 Computer Misuse Act 1990, incitement and conspiracy to commit these offences, and conspiracy to defraud contrary to common law. The prosecutions were overwhelmingly successful, resulting in cases with sentences of imprisonment of up to 5 years.
Most recently, a prosecution brought for design infringement by a private individual whose designs were alleged to have been infringed by a competitor business was assisted by Mike Northern.
Why prosecute privately? In the past decade or so resources available to enforcement and the criminal justice system had become very strained. The police and the CPS suffer from a lack of resources and are not able to prosecute cases which they may have done at an earlier time. Indeed, trading standards is very poorly resourced now and brings very few cases compared to the time when Mike Northern was trading standards officer in the 1980s. Consequently, private prosecutions provide an outlet for criminal behaviour to be prosecuted by victims, but without relying on the resources of the police, enforcement bodies and the CPS to investigate or bring proceedings.
The media prosecutions in which Mike Northern Legal acted, as explained above, were brought on behalf of trade bodies representing large organisations in the media industries. Consequently, although the prosecutions were brought by these industries, the body bringing proceedings was not a large organisation. These trade bodies employed of teams of investigators, which collected evidence of the infringement of copyright or trademarks discovered, and worked closely with police, trading standards and the HMRC, who utilised their powers to investigate such cases. The enforcement authorities supported but did not bring the matters to the Courts, this was left to the privately prosecuting trade bodies. Thus, although the prosecutions were not brought by a large organisation, since large organisations’ interests were represented, the process and systems for bringing prosecutions, had to be agreed across the industries.
The overriding practice was for independent solicitors and counsel to be instructed to advise upon and subsequently to prosecute the cases. In the role as independent legal advisors, the principles utilised by the CPS in the Full Code Test when deciding whether a prosecution should be brought, ie that it would be in the public interest and sufficient evidence was present to ensure a reasonable prospect of conviction, were followed by the legal team. Consequently, oversight from independent legal professionals was always available and utilised.
Although the trade body acting on behalf of its members, clearly has an interest in the bringing of a prosecution, whether the prosecution should be brought and what offences would be summonsed was always devolved to, agreed by the independent legal professionals. This ensured oversight of the prosecution to mitigate any commercial interest the owner of the infringed intellectual property rights would have in a successful prosecution.
Section 6 of the Prosecution of Offences Act 1985 retains the right of prosecutions to be brought by persons or parties other than the Director of Public Prosecution and the Crown Prosecution Service. There are a number of existing safeguards to regulate private prosecutions instituted under section 6.
These include sub-section (2) which provides that whilst the DPP is not under a duty to take over the conduct of a prosecution, she may do so at any stage. This may occur on the application of the judiciary and / or the defence representatives involved in the case, or indeed the prosecutor, if in the latter case the prosecutor considers that a matter of major public importance has arisen in a case. Mike Northern Legal has experience of an application by the defence to the DPP to intervene to take over and stop a prosecution. The prosecution was a case alleging extensive Internet-based film piracy, in which the DPP declined to intervene as it was accepted that the private prosecution had been properly brought and in accordance with the CPS guidelines. The case was ultimately successful.
Some offences can only be prosecuted privately with the consent of the Attorney General. However, most offences are available to be prosecuted privately, and it is particularly useful weapon in some fields such as intellectual property infringement.
A further safeguard in regulating private prosecutions is the application of the rules of abuse of process, which may be made argued before the criminal courts by a defendant. In such an application the Judge hears arguments as to whether a prosecution amounts to an abuse of process, hearing from both parties. Such an application might relate to part of the case or for example the fact that the prosecutor has a commercial interest in the case. A successful argument of abuse of process might may result in the case being dismissed by the Judge. Such cases are no different to a public prosecution in this regard.
Additionally, a conviction in the crown or magistrates’ courts may be appealed in the same manner as a public prosecution and this safeguard is not removed by the mere fact that a prosecution is brought privately. Indeed in advising clients on the merits of a private prosecution, a legal adviser should always bear in mind the fact that a conviction may result in an appeal which will involve the private prosecutor in the resulting proceedings, in responding to the appeal. Such appeals may potentially go all the way to the Supreme Court; thus, the responsibilities of a private prosecutor are not to be lightly dismissed.
As explained in 5. and 8. below larger prosecuting organisations should be required to comply so far as is relevant and reasonable with the provisions of RIPA and the disclosure provisions of the Criminal Procedure and Investigations Act 1996 (CPIA) and the relevant codes of practice. Further see 8. below for a discussion regarding the CPS Full Code Test and its applicability to private prosecutors.
The Police and Criminal Evidence Act 1985 provides protection to defendants investigated by the police and enforcement authorities. Case law suggests that private investigatory undertakings which are not public bodies, are regulated by its provisions, thus this should by extension, extend to large organisations such as the Post Office.
Issues may arise where a private prosecution relies on evidence, that if the investigator is a public authority regulated by the Regulation of Investigatory Powers Act 2000 (RIPA), would have been regulated by its provisions and codes of practice. In such circumstances, the protections will not extend to the actions of private investigators and the like, whose evidence obtained in anticipation of a private prosecution, may be used in the private prosecution without compliance with RIPA.
To deal with this lacuna, investigators employed by the media industries trade bodies always sought so far as was possible, to comply with the provisions of both PACE and RIPA and the codes of practice that are derived under this legislation. Consequently, the courts should actively expect some semblance of compliance with RIPA and PACE by all prosecutors and investigators alike.
Media industry prosecutors always complied with the provisions of CPIA and its codes of practice, and worked closely with the enforcement authorities with whose assistance prosecutions were brought, to ensure that disclosure was always a priority
Mike Northern legal has experience of the CPS involvement in various proceedings in different circumstances. These are:
Experience of the three cases demonstrates that a safety valve exists whereby the DPP represents the interests of justice in regulating private prosecutions before the courts, and that the DPP is seeking to balance the interests of justice in exercising the powers of intervention.
Experience of so many prosecutions has shown that the effort put in by the private prosecutor brings rewards in the courts. Successful prosecutions rely upon the private prosecutor taking the role of the prosecutor very seriously. The evidence must be carefully assessed and presented in a comprehensive and comprehensible manner to the court. Judges in Mike Northern's experience have always reacted favourably to a private prosecutor who does take the responsibility that is placed upon it by the judicial system seriously, and carefully present the case in a manner that complies into alia with the CPS guidelines.
The current ability for prosecutions to be brought privately under section 6 of the Act should be retained as a useful means for victims of crime to obtain justice in the absence in the modern age of active enforcement and prosecuting by the authorities.
This right to prosecute remans fit for purpose but in relation to larger organisations that bring private prosecutions such as the Post Office, additional safeguards may be prudent. These are:
An appropriately drafted certificate from in counsel or the instructed solicitors may be considered sufficient, provided that appropriate transparency of the decision-making process is made available to defendants.
July 2020
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