Written evidence from Aliant Law
This paper is prepared on behalf of the London office of Aliant Law, an international law firm. Our team includes Sandip Patel QC (Barrister, Managing Partner), Muthupandi Ganesan (Barrister, Partner), and Barry Smith (former Barrister, now solicitor, Associate) who have significant experience in the bringing and defence of private prosecutions both as litigators and as former members of the independent criminal bar.
By way of general observation, this firm is of the view that there are currently insufficient safeguards to protect the interests of the defendant in private prosecutions. We are conscious that there are a number of existing safeguards, such as intervention by the Court, the ability of the CPS to review and take over a case, the use of external counsel, and the professional regulatory standards of the lawyers involved. We remind the Committee that despite all of those measures being in place, they were not sufficient to prevent the well-established scandal involving private prosecutions brought by the Post Office Ltd. It was perhaps only through journalistic endeavour, and the civil litigation in Bates v Post Office Ltd [2019] EWHC 3408 (QB), that the underlying problems with those private prosecutions were properly brought to light.
Furthermore, we believe that the establishment of the Association of Private Prosecutors, with their own Code of Conduct, mirrors the existing rules and guidelines that already apply to the regulated professionals involved in a private prosecution. This is helpful. However, as their Code only exists in the context of a private membership body there is a risk of confusion in the eyes of the public between it and state regulators.
It has been highlighted by others that there is a lack of detailed evidence into the volume of private prosecutions. We recommend that the Committee investigates the financial information available as to the yearly expenditure of Central Funds from which the Private Prosecutor recoups their legal costs which may shed light on this question.
Commercial Interests
The Committee is already aware of the conflicting interests of the Private Prosecutor its combined role as (i) investigator; (ii) litigator; (iii) victim; (iv) witness; and (v) Minister of Justice. Against that background, we believe that the costs and funding of private prosecutions have received insufficient attention, and that these provide an in-built commercial incentive for the prosecutor to pursue a case in a distorted fashion which would not be present in a public prosecution.
The Committee are reminded that whilst private prosecutions are initially funded by the prosecutor themselves, their costs are normally recoverable from Central Funds (ie. public funds) pursuant to s.17 of the Prosecution of Offences Act 1985 and para. 2.6.1 Practice Direction (Costs in Criminal Proceedings) 2015. The amount paid is subject to assessment by The National Taxation Team, who in the experience of this firm will typically allow between 70-90% of those costs claimed. However, what is less well advertised is the fact that the rate of remuneration is significantly higher as a cost to the taxpayer than if the prosecution been conducted by a state body. By way of example, the CPS average hourly rates are £69 per hour (https://www.cps.gov.uk/legal-guidance/costs-annex-1). Conversely, in R. (Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823 reference was made to the composite hourly rates set out in the Senior Court Costs Office Guide to the Summary Assessment of Costs used by the National Taxation Team, which at present can be as high as £409 per hour. In Zinga, the Court made the following observations as to whether this provided good value for the taxpayer (emphasis added).
[37] ‘As publicly funded rates for experienced junior counsel in criminal cases, including rates paid by the Financial Conduct Authority are considerably less, a substantial premium is being paid to experienced junior counsel instructed as a private prosecutor.
[41] We accept that in certain areas of criminal prosecutions, some specialist knowledge of an area of law is necessary…
[42] We have, however, been assured by the Director of Public Prosecutions that the CPS has in its Specialist Fraud Division the necessary expertise and experience to conduct complex and difficult cases involving intellectual property. …
[43] … The costs of a private prosecution, whether successful or unsuccessful, are recoverable from the taxpayer; the use of private prosecutors will almost inevitably cost the State much more than the use of a State prosecutor, such as the CPS.
[45] The experience of this court is that there is unlikely to be any difference in qualify between a prosecution brought by the State and a private prosecution. In the present state of public finances and the funds available for the proper administration of justice, it cannot be right that the resources are deployed by the State in such a way than an opportunity is provided for prosecutions to be brought by private interests at a cost to the state that is likely to be far greater than if the prosecution were undertaken by the State. No doubt the savings to public expenditure can be used for the benefit of the proper administration of justice.’
This firm believes that the Court’s observations continue to be relevant and accurate, especially in light of other competing claims to the resources of the CPS and HMCTS. By opting to pursue a private prosecution rather than civil proceedings, the prosecutor also avoids having to make payment of any court fees. In civil proceedings, this will typically 5% of the value of the case up to £10,000. This issue was noted in R. (Virgin Media Ltd) v Zinga [2014] EWCA Crim 52 at [58] (emphasis added).
[58] ‘However it must be noted that the expense to the public purse may be greater given the way in which s.17 of the Prosecution of Offences Act 1985 operates and the fact that the use of criminal proceedings circumvents the fees charged in the civil courts for claims for the recovery of damages by way of compensation.’
It is even open for foreign companies to commence private prosecutions in the English courts, as was the case in R. v Clements [2019] EWCA Crim 2253, where a French company successfully prosecuted the defendant for trade mark offences, the costs of which were largely paid for out of public funds. Against this background, private prosecutions come at a significant cost to the taxpayer.
We are also conscious that a private prosecutor is unlikely, absent the making of a wasted costs order for what is in effect misconduct, to have to pay the costs of the defendant (as it would in civil litigation were it to lose the case), and its entitlement to its legal costs from public funds is not contingent on the prosecution being successful. In those circumstances, there is a strong financial incentive for a private prosecution to be brought instead of civil proceedings. Accordingly, the financial imperative, largely subsidised by state funds, can act as a real distortion on the motives and actions of a private prosecutor.
To mitigate against this risk, we recommend that the rates at which a private prosecutor can recoup its costs be limited to the guideline CPS rates. Whilst it is in fact open to the Courts to do this already, it would be preferable for this to be set out in a suitable practice direction. In doing so, this would mean that the motives of a private prosecutor would be more closely aligned with its most important role, as a Minister of Justice, rather than being a more expensive method (to the State) by which crime can be prosecuted. We would expect the savings to Central Funds which would result to be diverted to the CPS and other public bodies who do not prosecute for financial gain. This would support the principle that, where possible, the more appropriate entity to bring a prosecution is a public body
Charging Practice
We note that in the oral evidence given to the Committee the issue of the Post Office charging defendants both with theft and false accounting was raised. The Court of Appeal considered this issue in the case of R. v Eden (1971) 55 Cr. App. R. 193 in which the practice of the Post Office charging both theft and false accounting received judicial disapproval:
‘It seems to this Court to be rather odd that two counts, theft and false accounting, should be put in parallel setting, if it is the object of the prosecution to secure a conviction on the first only if the second is proved, or on the second only if the first is proved. There would seem in those circumstances but little point in putting two separate counts. It would be better in future that the prosecution should make up its mind as to whether or not it really wants a conviction on a count for false accounting only if theft; is proved: if so, reliance should be placed on one count only. On the other hand, there may be cases when it is wise to have a count for false accounting; where, for instance, a temporary gain could be the object of the dishonest act’ per Sachs L.J.
We recommend that a greater role be explored for the CPS to be able to direct private prosecutors on the appropriate charges to bring without needing to take over the entire prosecution, that normally being a heavy-handed and potentially expensive remedy the problem.
Other safeguards
We also recommend that the CPS’ role in monitoring private prosecutions be made easier by way of mandatory reporting of the commencement of a private prosecution to the CPS. This would not have any significant resource implications for the CPS as the fact of reporting would not necessarily trigger a review, and it would enable enhanced monitoring and data collection. We would suggest that a standard form report be generated and filed digitally, and be provided for in the Criminal Procedure Rules. Such a report could include also declarations from the Prosecutor, signed by a statement of truth, as to whether or not the case had been reported to public investigating authorities, and confirm declarations as to the extent of investigation and disclosure carried out, to complement the existing information laid before the Magistrates’ Court to commence the prosecution.