Written Evidence from Private Prosecutors’ Association (PPS0021)

  1. The Private Prosecutors’ Association (“PPA”)

1.1                 The PPA was established in 2017 and aims to bring together professionals with expertise in the conduct of private prosecutions and to recognise and promote best practice in this field.  A number of our members defend private prosecutions as well as bring them. The PPA provides a forum for discussion; the opportunity to make collective representations on important issues affecting private prosecutors or prosecutions; and networking and educational events for members and non-members.

1.2                 The PPA has over 150 members: solicitors, barristers, accountants, investigators and academics.  Some of the PPA’s members are lawyers employed by organisations.  The PPA does not speak on behalf of those organisations or on behalf of any individual PPA member

1.3                 The timeframe of this request for evidence has not allowed for any consultation of PPA members and the PPA Committee has, of necessity in working to that timeframe, prepared this document without wider input from the membership. That is regrettable because the contribution of our experienced membership would no doubt greatly assist the Committee in this inquiry.  We would encourage the Committee to take the opportunity to consult more widely.

1.4                 We would not wish to comment on the Post Office cases whilst they are awaiting determination by the Court of Appeal. We have some concerns about the factual matrix in any event, because it is our understanding that, during the relevant period, the Post Office was a publicly-owned entity and a public prosecutor[1]

1.5                 That being said we believe that we can give evidence in relation to some general matters which may be of assistance to the Committee.

1.6                 Were the Committee to consider the matter further once the Court of Appeal has given judgment, we would of course be happy to contribute.

 

      1. The Code for Private Prosecutors

2.1                 In 2019, the PPA published a Code for Private Prosecutors (“the PPA Code”).  We append a copy.

2.2                 We felt there was a need for a resource which sets out (really for the first time) how a private prosecution should be conducted, drawing together important points of principle from various decisions of the Divisional Court and Court of Appeal. The PPA felt that for the protection of the public, principles of best practice should be available in one place and in a place which is readily accessible to members of the public. Whilst recognising that it would not (without more) have the force of law, it was hoped that if the principles were considered sound, it would be adopted through usage and acceptance. An inexperienced private prosecutor (even a lay person) can now have easy access to a single, concise document which sets out what is expected and indeed required of a private prosecutor in his or her role as a Minister of Justice. The PPA Code is not a manual for how to bring a private prosecution; nor is it a checklist.  Its purpose is to identify key principles and important factors to be considered, thereby providing a benchmark for best practice in the conduct of private prosecutions.

2.3                 The PPA Code was drafted by members of the PPA following a consultation exercise which drew on contributions from other organisations and bodies which had relevant experience and interests.  These included self-employed counsel, in-house employed counsel, investigators (in-house and external), forensic accountants, and ex-law enforcement personnel.  They were drawn from all spheres, including private practice, large organisations, financial services, and not-for-profit organisations.  It was edited by Professor Peter Hungerford-Welch, Professor of Law and Assistant Dean at City, University of London.

2.4                 Key stakeholders were identified and directly invited to comment.  These included but were not limited to:

2.4.1           judges from Magistrates' Courts (incl. the Chief Magistrate), Crown Courts and above;

2.4.2           Resident and retired judges with recent experience of private prosecutions;

2.4.3           the Criminal Procedure Rules Committee;

2.4.4           the Judicial College Board;

2.4.5           the Criminal Bar Association;

2.4.6           the Law Society Criminal Law Committee;

2.4.7           the Bar Council;

2.4.8           the Bar Standards Board;

2.4.9           the Solicitors Regulatory Authority;

2.4.10       the Law Society; and

2.4.11       numerous industry bodies and academic organisations.

2.5                 The Code underwent a two-stage consultation process and the questions posed are still available on the PPA's website.

2.6                 The first edition of the Code was published on 30 July 2019, with the intention that it will be reviewed and updated periodically to reflect key developments in law and policy relating to criminal prosecutions, and private prosecutions in particular. 

2.7                 The PPA Code gives guidance to private prosecutors, and to those who advise, assist or act on their behalf, on the general principles to be applied when making decisions about private prosecutions. Amongst other things it identifies and highlights common difficulties and pitfalls in order that they can be addressed and considered before a prosecution is started. The PPA Code is aimed primarily at private prosecutors and their advisors but may also be of assistance to other participants in the process.

2.8                 Adherence to the PPA Code is voluntary but members of the PPA confirm that they will abide by it.

2.9                 Anecdotally, the PPA Code has received positive judicial comment.

2.10             A speech by Sir Peter Gross to members of the PPA in November 2019 is enclosed with this response and may be of particular assistance, not least because of his judicial role in the cases of Haigh [2017] EWHC 232 and R (on the application of Kay and Scan-Thors (UK) Limited) v Leeds Magistrates’ Court) [2018] 4 W.L.R. 91

 

 

 

      1. Private Prosecutions – The Justice Gap

3.1                 The PPA was established at a time when the number of private prosecutions had been growing rapidly.  It is our view (and that of others in the criminal justice system[2]) that, in part, this growth reflects an inability of state bodies, as currently resourced, to meet demand.  Many crimes which could be prosecuted are not. This, in many cases, leaves victims looking for alternative remedies, of which private prosecutions are one.

3.2                 This is further illustrated by the gap between the number of reports of financial crime to Action Fraud and the number of such cases taken forward by the police for investigation and thereafter prosecuted by the Crown Prosecution Service.  Over and above the need to address what we would characterise as a justice gap, there is advantage, including advantage in terms of the allocation of limited public resource, in organisations with particular specialist knowledge prosecuting cases in their own field rather than them being passed to the Crown Prosecution Service.

3.3                 In our experience, on occasions (in appropriate cases and with suitable safeguards) a private prosecution can provide a remedy for victims when no other is available.

3.4                 In a similar vein, the availability of private prosecutions can provide some element of deterrence in an environment in which fraudsters are aware that the chances of their crimes being detected and prosecuted can, sadly, sometimes be very low.

3.5                 We are not aware of any rivalry between state agents and those who bring private prosecutions. In many cases the relationship can be co-operative.

 

      1. General observations

4.1                 Without any formal findings having been made about the Post Office cases which have been referred to the Court of Appeal by the CCRC, it is difficult to know whether there were failures in those cases and if there were, whether these were systemic and/or were unique to private (in this case, non-Crown Prosecution Service) prosecutions, as opposed to prosecutions in general.  As we have said, it is our understanding that in truth these were not private prosecutions, in the generally understood sense. For these reasons, we restrict our evidence to general matters.

4.2                 The checks and balances that have been built into the Criminal Justice System to identify and remedy shortfalls in prosecution disclosure are, in general terms:

4.2.1           the legislative requirements imposed by the Criminal Procedure and Investigations Act 1996 ("the CPIA"), which governs the conduct of investigations and disclosure to the defence;

4.2.2           The scrutiny of the investigator’s methods and product provided by the prosecuting lawyer;

4.2.3           The role played by the defence in engaging with the disclosure process to identify areas of potential concern; and

4.2.4           The court's duty to ensure that every trial is fair.

4.3                 In addition there are a number of detailed processes designed to permit scrutiny of the fairness of the prosecution evidence-gathering process. Many of these were legislative provisions enacted as a consequence of miscarriages of justice; they apply equally to private and public prosecutions. The most important of these are:

4.3.1           The obligation upon the Prosecution to schedule all Unused Material relevant to the case and to provide a copy to the defence, together with the disclosure of any material which meets the statutory test set out a s.3 CPIA[3];

4.3.2           The practice (not currently mandatory but increasingly commonplace) of preparing and serving a Disclosure Management Document setting out the approach applied to unused material, the extent of enquiries of third parties to obtain access to further relevant or potentially relevant material, and any limitations of the schedules.

4.3.3           Judicial oversight of disclosure at preliminary hearings including (but not limited to) review of the case during the course of an application to dismiss and in the context of applications to exclude evidence (under s.78 Police & Criminal Evidence Act 1984 ("PACE"));

4.3.4           Applications to compel further disclosure made pursuant to s.8 CPIA 1996; and

4.3.5           Applications to stay proceedings as an abuse of the process of the court.

4.4                 There are three aspects which apply solely to private prosecutions and which provide further layers of scrutiny. These are:

4.4.1           The obligation to provide full and frank disclosure of matters contrary to the prosecution case when applying for a summons and the role of the District Judge or magistrates in probing that disclosure[4];

4.4.2           The defendant’s right to apply to set aside a summons which has been issued and to seek judicial review of any refusal, where appropriate[5];and

4.4.3           The procedure for referral of a private prosecution to the Crown Prosecution Service ("the CPS") by any party, the CPS having the power to take over and either terminate a prosecution or conduct it themselves, if there is a ‘particular need’ to do so.

4.5                 That being said, although a prosecution lawyer, whether instructed by the state or a private entity, is required to act as a minister of justice, it is artificial not to recognise that there is inevitably some inherent tension in the disclosure process; viz the vitally important requirement to seek out, identify and provide to the defence material that undermines the case one is pursuing. Regrettably, the history of criminal justice provides a number of examples of instances where a police officer or public prosecution lawyer has succumbed to a conflict of interest and acted improperly to prop up what they believed to be a true case[6]; or persuaded themselves that a category of material did not require review and/or disclosure, when objectively it did[7]; or failed to commit sufficient resource to the disclosure process.  There are even cases of naked prejudice and bad faith in the public part of the system.

4.6                 We suggest therefore that the better question is not whether private prosecutions present the same or any greater risk, but rather whether the checks and balances (and any others which could be developed) which apply to all prosecutions are sufficient to ensure that when errors occur (be it maliciously or through oversight or poor judgement) they are identifiable and remediable. 

4.7                 On the dual questions of timing and of ensuring that any recommendations made are meaningful and impactful, as we observed in our response to the Attorney General's disclosure consultation, any progress made as a result of that consultation will be significantly diluted if the opportunity is not also taken at the same time to unify – so far as practicable – the different strands of legislation, guidance and guidelines, and general best practice. Sometimes errors occur because those unfamiliar with the system would need to consult a number of different sources before they could fully understand their obligations.

 

      1. Regarding 'the way in which large organisations bring private prosecutions'

5.1                 We have considered the Terms of Reference and the Committee’s focus on the risk that accompanies the right of large organisations to bring private prosecutions.

5.2                 As above, it would be premature to draw any conclusions from the conduct and/or course of the Post Office/Horizon prosecutions at this stage.

5.3                 We are unclear as to whether the concern expressed relates to the size of the organisation bringing private prosecutions, or whether in reality the concern is about organisations that bring private prosecutions in volume.  The Post Office has publicly stated it brought around 900 prosecutions involving the Horizon system (presumably in addition to the many prosecutions brought in respect of delivery staff) which makes it a very high volume prosecutor by comparison with the majority of private prosecutors.  For example, the number of private prosecutions brought by the Security Industry Authority in respect of security staff, was reported to have been 30 prosecutions in the 12 months to May 2020[8].

5.4                 Volume prosecutions (whether public or private) can present particular challenges.

5.5                 That being said, full and proper adherence to disclosure obligations requires a commitment of resource which large organisations are often well-placed to fund.  Our experience of large UK companies bringing either a single private prosecution or a modest flow of private prosecutions is that those cases are afforded significant resources; this enables the disclosure process to be carried out with particular care and to be documented in a way that makes it transparent to both defendants and the judiciary. Often such organisations wish to instruct senior QCs to prosecute the cases, very frequently those who have extensive experience of prosecuting for the CPS or the SFO.

5.6                 The critical issue is one of culture and mind-set. This is so whether considering a public or private prosecution scenario.  Best practice on disclosure is replete with references to the importance of the culture of and attitude to disclosure and how that informs the proper discharge of the respective parties' roles and responsibilities.  It is axiomatic that ‘bad’ culture can exist, as well as good.  In our experience, where we have encountered large organisations which prosecute more than a one-off private prosecution, the organisational culture has been one of respect for the criminal justice system and of a heightened desire not to do anything which would bring the process into disrepute. It would be wrong to conclude that all large organisations which bring private prosecutions are generically disrespectful of or careless about their disclosure obligations.

 

      1. Detail of Disclosure in Criminal Proceedings

6.1                 There is in practice very little difference between the disclosure regime which applies in private prosecutions and that governing public prosecutions.  In our experience, if anything the scrutiny afforded to private prosecutions is often greater.

6.2                 That said, one area of real difference relates to the obligations of the investigator, in that some investigators in the private sphere may fall outside the CPIA Code (see below).

6.3                 The obligations of the prosecutor are identical whether the prosecution is a public or a private one.

6.4                 Disclosure in criminal proceedings is governed primarily by the CPIA[9].  The provisions of the CPIA apply to all prosecutions: i.e. private prosecutions, those brought by the Crown Prosecution Service and Serious Fraud Office and to those brought by entities including the Financial Conduct Authority and the Health and Safety Executive, the Security Industry Authority and members of the Whitehall Prosecutors’ Group[10].

6.5                 The disclosure process is further governed by the Criminal Procedure Rules; the Attorney General’s Guidelines on Disclosure; and the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases.  All of these apply to private prosecutions in exactly the same way as they do to those brought by the State.  There is also helpful guidance in the CPS Disclosure Manual which undoubtedly has at least highly persuasive effect.

6.6                 Decisions of the Court of Appeal (Criminal Division) have established requirements that prosecutors apply a nuanced and intelligent approach to disclosure: see R v. Olu[11].

6.7                 Currently, the Attorney General is conducting a consultation in relation to the Attorney's Guidelines on Disclosure and the CPIA Code of Practice, which closes on 22 July 2020. The PPA has contributed written submissions to this process.

6.8                 Section 23 of the CPIA provides for the creation of a CPIA Code of Practice (“the CPIA Code”).  The Preamble to the CPIA Code states that it sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation and which may be relevant to the investigation, and related matters.   The introduction states:

1.1 This code of practice applies in respect of criminal investigations conducted by police officers which begin on or after the day on which this code comes into effect. Persons other than police officers who are charged with the duty of conducting an investigation as defined in the Act are to have regard to the relevant provisions of the code, and should take these into account in applying their own operating procedures.

1.2 This code does not apply to persons who are not charged with the duty of conducting an investigation as defined in the Act.

6.9                 It should be noted that the ambit of the CPIA Code is considerably narrower than that of the PPA Code, in that the CPIA Code is restricted to the operation of the disclosure process (including the obligation to record and retain material for potential later disclosure).

6.10             The CPIA provides, at section 26(1):

26. Effect of code

(1) A person other than a police officer who is charged with the duty of conducting an investigation with a view to it being ascertained—

(a) whether a person should be charged with an offence, or

(b) whether a person charged with an offence is guilty of it,

shall in discharging that duty have regard to any relevant provision of a code which would apply if the investigation were conducted by police officers.

6.11             The effect of section 26 is that some, but not all, investigators conducting investigations that lead to private prosecutions will be governed by the CPIA Code.  Whether a particular investigator does or does not come within the definition in section 26 is not always clear.  It should be noted that there is some cooperation between private prosecutors and police and that the healthy development of those relationships is a matter being considered by parts of the public system.

6.12             The PPA Code encourages adoption of the provision of the CPIA Code unless any provision cannot properly be said to apply to a private prosecution. We cannot suggest that it is a requirement because that is not the law, but it is our view that it is highly desirable for those contemplating a private prosecution to follow the CPIA Code. That being said, it has to be recognised that in some cases there may be limitations as to that which can reasonably be achieved.

6.13             The PPA Code addresses disclosure in Part 4. It sets out an approach to, amongst other things, sensitive material and material to which legal professional privilege attaches.  It states our view that the private prosecutor must accept at the outset that they will not be able to withhold material that meets the test for disclosure, solely on the basis that it attracts legal professional privilege. This can come as an unwelcome surprise to some litigators as well as some lay prosecutors, not least because it is very different to the rule in civil proceedings.

6.14             One significant change in recent times has been the increasing use of Disclosure Management Documents and Disclosure Management Protocols in a wide range of cases.  The PPA Code encourages the use of these as being best practice, unless it could be said that it would be disproportionate in any given case.  These documents are created by the prosecutor – ideally at an early stage in the investigation – and served upon the defence and provided to the court. They provide transparency as to the disclosure process adopted by the prosecutor.  They explain what categories of material have been obtained and reviewed and the approach taken to large quantities of digital material.  They can allow identification (expressly or impliedly by omission) of categories of material that have not been subjected to review and to which the CPIA test for disclosure has not, or may not, have been applied.  This can assist the defence in the making of applications for further disclosure and/or in the mounting of abuse of process arguments for proceedings to be stayed.

6.15             Under section 8 of the CPIA the defendant has a right to apply to the Court for disclosure of items which the prosecutor has refused to disclose.  Where material has not been obtained or has not been retained there may be grounds for a stay of proceedings for reason of abuse of process and/or because a defendant cannot receive a fair trial.  Our experience is that judicial oversight of the disclosure process has increased significantly in relation to private prosecutions.

 

      1. The role of the Crown Prosecution Service

7.1                 In our assessment, the CPS's current policy – namely of reviewing a case in accordance with the Code for Crown Prosecutors when asked to by (one of) the parties and/or the Court – is the correct one.

7.2                 That policy is clear and is conducted by reference to a publicly-available, statutory Code which is periodically reviewed via a consultation process.

7.3                 Importantly, the CPS's policy makes it clear that it is not the CPS's role to regulate the conduct of the parties; rather that is properly the function of the Court exercising powers under PACE (to exclude evidence), its discretion to stay proceedings as an abuse of process (where the defendant cannot have a fair trial or it would be unfair to try the defendant), as well as in connection with the making of costs orders.

7.4                 We observe that the CPS's review of a case is only as good as the material with which it is provided, by both parties.  In that regard, and by way of example, we note that the CPS's policy does not call for the routine provision of the unused material in the case, only that which meets the test for disclosure.

7.5                 It is also important to keep in mind that, in the event that the CPS takes over a prosecution to continue it through to trial, the role of the alleged victim changes at that point.  At that stage, the principal duty of disclosure rests with the incumbent prosecutor – i.e. the CPS – and not the alleged victim, who had formerly borne the relevant duty.  Although it is right to observe that the CPS may bring a different perspective to the discharge of those duties, it could not be said – in our experience – that that automatically places the defendant in a stronger position vis-à-vis material which may be being withheld by the victim/complainant organisation.  The situation could also be made more confusing through the mandatory introduction of a fresh police investigatory team, who would need to be brought in at the same time as the CPS is taking over conduct of the case, to be responsible for the investigation and the management of the relevant material in the case, much of which would be secured by way of a voluntary process with the victim/complainant.

 

      1. Suggestions for improved or additional safeguards

8.1                 It is well-recognised that whilst many private prosecutions are properly brought and scrupulously conducted, there have been some where there has been serious and justified cause for concern. Examples include cases which are wholly misconceived and have no prospect of succeeding, those where the prosecutor has sought to use the criminal justice system as a form of blackmail and those brought for political reasons.

8.2                 The Committee is invited to consider the following:

8.2.1           Legislative force being given to a Code (such as ours) against which private prosecutions can be measured; and

8.2.2           HMCTS to record the number of private prosecutions and the type. Many people are very surprised to learn that there is no publicly-available data as to the number and whether it is increasing. At present there is no way of monitoring issues or causes for concern.

 

      1. Concluding Observations

9.1                 We suggest, with regard to the theme of effectiveness of disclosure in criminal cases which runs through the Committee’s terms of reference, that disclosure will go wrong where:

9.1.1           Those in charge of or supervising the process have particular animus towards a particular defendant or group of defendants;

9.1.2           Where a lack of resources means that insufficient time is given to the process;

9.1.3           Where those involved in the process fail to appreciate the relevance of material or where they are not made aware of its existence in the first place; and

9.1.4           Where an investigator or alleged victim prioritises other interests (e.g. reputational interests, commercial sensitivity, cost) above their disclosure obligations.

9.2                 All of these situations can arise in both state-brought and private prosecutions.  Each of them ought to be exposed and/or mitigated by the existing regime.  That of course will be aided by judicial oversight and monitoring, but also by the engagement of an adequately funded defence team.  Although beyond the remit of our evidence to this Committee, all responsible prosecutors are concerned at the lack of funding for the defence in many criminal cases. A competent and properly funded defence is in the end the greatest safeguard against miscarriages of justice.

      1. Reported cases of potential assistance to the Committee

10.1             The following reported cases may be of particular assistance to the Committee:

10.1.1       R (on the application of Kay and Scan-Thors (UK) Limited) v Leeds Magistrates’ Court) [2018] 4 W.L.R. 91

10.1.2       Johnson v Westminster Magistrates’ Court [2019] EHWC 1709 (Admin)

10.1.3       Regina (Virgin Media Ltd) v Munaf Ahmed Zinga [2014] EWCA Crim 52

10.1.4       R (Haigh) v City of Westminster Magistrates’ Court [2017] EWHC 232

10.1.5       D Limited v A [2017] EWCA Crim 1172

10.1.6       R (on the application of Holloway) v Harrow Crown Court [2019] EWHC 1731 (Admin)

10.1.7       Scopelight Limited v Chief Constable of Northumbria Police Force [2010] Q.B. 438

10.1.8       R (on the application of Gujra) v Crown Prosecution Service [2012] UKSC 52

10.1.9       R (G) v S [2017] EWCA Crim 2119

10.1.10   R (Dacre) v City of Westminster Magistrates’ Court [2009] 1 WLR 2241

July 2020

 


[1] See section 17 subsections (2) and (6) of the Prosecution of Offences Act 1985

[2] See for example Lord Thomas LCJ in Regina (Virgin Media Ltd) v Munaf Ahmed Zinga [2014] EWCA Crim 52: “there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions

[3] Per s.3 CPIA, the prosecutor must disclose to the defence any prosecution material which has not previously been disclosed to the defence and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.

[4] See Part 7 of the Criminal Procedure Rules 2015, as amended, and e.g. R. (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 Admin.

[5] See for example  R v Clerk to the Bradford Justice ex parte Sykes and Shoesmith (1999) 163 JP 224; Regina (Kay and another) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin); and R. (on the application of Chief Constable of Northumbria) v Newcastle upon Tyne Magistrates' Court [2010] EWHC 935 (Admin)

[6] See for example Attorney General’s Reference No. 1 of 2002 [2002] EWCA Crim 2392

[7] See for example R v. Liam Allen (mobile phone records in the context of rape allegations)

[8] https://www.sia.homeoffice.gov.uk/Pages/enforcement-prosecutions.aspx

[9] There are additional common law disclosure obligations which bite in particular at the very early stages of proceedings before the statutory provisions of the CPIA have effect: see R v DPP ex parte Lee [1999] 2 All ER 737

[10] See WPG details at https://publications.parliament.uk/pa/cm200809/cmselect/cmjust/186/186we28.html

[11] https://www.bailii.org/ew/cases/EWCA/Crim/2010/2975.html