Letters roundup: 10 May 2021

In defence of private prosecutions

The recent victory for subpostmasters in the Court of Appeal should not be allowed to detract from the fact that private prosecutions provide an effective route to justice for victims of crime, particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. I recognise the significant concerns that have arisen in the Post Office cases and it is of course right that there should have been an exposé of the issues and the wrongdoing involved. However, that is not to say that we should now write off all private prosecutions as dangerous and flawed.  

In many respects, the term ‘private prosecution’ is a misnomer as prosecutions in the Crown court are brought on behalf of the Crown. While this may be perceived as pedantry, it is relevant in a proper understanding of the role of a ‘private prosecutor’. Their obligations are no less than that of a member of the Crown Prosecution Service or other state prosecutorial body, and in my experience the judicial scrutiny given to private prosecutions is often significantly greater.

In response to the Post Office fiasco, the government set out to review whether the safeguards currently in place are sufficient to protect putative defendants from an abusive private prosecution. Unfortunately, the outcome of that review seemed to be more focused on the issue of restricting costs recovery in private prosecutions rather than addressing what, if any, safeguards are needed to prevent this situation from happening again.

For the public to have confidence in our justice system, it is vital that those who bring private prosecutions do so fairly and without being affected by improper motive and under pressure from any source. To that end, the Private Prosecutors’ Association has developed a code which supports their members to ensure they adhere to best practice in this field.

It would be a shame if the actions of a few led to a restriction on costs recovery and with it the unintended consequence of restricting access for those who might otherwise not be able to afford to bring a prosecution. Private prosecutions, notwithstanding the Post Office cases, continue to play an important role in our criminal justice system.  

Melinka Berridge

Partner, Kingsley Napley, London EC1

Domestic abuse progress

The Domestic Abuse Bill has, after a lengthy legislative process, received royal assent. Theresa May first pledged the new law in 2017. Two years later a draft bill was published. Later that year, it fell twice in two months because of the illegal prorogation of parliament and a snap general election. Now it has been granted royal assent after a tumultuous week in parliament. The Lords had been advocating for the automatic monitoring of offenders under an existing police database but backed down on this as time for the bill to pass was running out.

The bill is far from perfect and this perhaps explains the rather muted response to what the government are describing as a ‘landmark’ piece of legislation. Migrants and refugees, a group far more likely to receive abuse because of their immigration status, have been excluded from its provisions. Mandatory judicial training on domestic abuse is also missing (I would recommend reading the facts of the four appeals wrapped up in the case Re H-N and Others (children) (domestic abuse: finding of fact hearings) to understand why this is desperately needed to ensure justice in our courtrooms).

There is progress within the bill. For the first time, children who live in a home where domestic abuse takes place, see, hear or experience the effects of domestic abuse and are related to the person being abused or the perpetrator will be recognised as victims in their own right, rather than witnesses.

Local authorities in England are under a new duty to provide support to survivors of domestic abuse and their children in refuges and safe accommodation. All eligible homeless victims of domestic abuse aged 16 and above will be given ‘priority need’ for homelessness assistance.

Families affected by domestic abuse can secure increased protections by way of a Domestic Abuse Protection Order or the Domestic Violence Disclosure Scheme.

Victim protections will be extended to young people aged 16 and over, which is critical as the most common age group in which abuse is experienced is 16-24.

The rules around coercive and controlling behaviour are strengthened – it targets revenge porn and ends the use of the ‘rough sex defence’ in court.

Legal reform is a starting point. Future work will need to focus on education and a cultural shift to ensure everyone knows where to go, or who to speak to, if someone they know personally reveals themselves as a victim of domestic abuse.

Jemima Lovatt

Founder, ThriveCIC, London

ID1 dilemma

We have had two worrying requisitions from the Land Registry this week on different files, asking for ID1 forms for sellers who are represented by a solicitor when we have been acting for buyers and their lenders. We have responded in several different ways to point out that if a seller is legally represented, how can an ID1 form be needed? Yet I am finding the caseworker and their supervisor quite immovable and am yet to successfully get someone on the phone who is able to discuss this with me properly. It is completely unworkable for them to be able to ask for ID1 forms in such circumstances. Surely we don’t now have to ask every solicitor acting for a seller to provide an ID1 form in case it is needed post-completion; and obviously most will refuse as they cannot agree in case their client refuses or ignores their requests post-completion when they have had their sale proceed. Sellers’ solicitors cannot routinely get ID1 forms in every case on the off chance. Even if they did, they could go out of date before they are requisitioned. Can I ask if anyone else has experienced this and how they have got around it (apart from acquiring the ID1 form, of course)?

Angela Neale

Head of residential conveyancing, Comptons Solicitors, London NW1