In defence of private prosecutions

The Post Office scandal has rightly led to numerous calls for reform of the UK legal sector. Among them, our specialist area of practice, private prosecutions, is facing calls for rule changes, or from some quarters, a complete overhaul.

A root cause analysis of the scandal, however, will reveal that problems initially arose not because the Post Office was able to directly undertake its own prosecutions, but because it failed to comply with its legal obligations as the prosecutor. If anything, the scandal has reiterated the importance of investigators and prosecution lawyers complying with their disclosure duties; duties that apply identically to prosecutors in both the private and public spheres.  

It also demonstrated that objective scrutiny from independent lawyers is vital. The Post Office failed in its responsibility to comply with the continuing duties of disclosure, under the Criminal Procedure and Investigations Act 1996, which applies to all prosecutors. It was not a process failure or a difference of judgement – the Post Office knew there were fundamental problems with its critical evidence and it failed to disclose this. There is no basis to consider that such obvious disclosure failures are any more prevalent in private prosecutions than public ones.

Conversely, there is a positive case to be made for private prosecutions, which allow victims to seek justice at a time when financial constraints are greater than ever, and police are often unwilling or unable to investigate complex crimes. Nowhere is this more evident than in the state’s failure to prosecute fraud, which accounts for more than 41% of reported crime annually but sees only 1% of cases ever prosecuted.   

But private prosecutions are not solely useful in cases of fraud. The constitutional right of a victim of crime to bring a prosecution has been recognised at the highest levels of the judiciary and is deeply enshrined in our law. In most private prosecutions, the prosecutor is the victim or complainant of the alleged offence. In 2023, Edmonds Marshall McMahon helped secure justice in a case concerning a rugby coach accused of historical sexual abuse offences. Neither the police’s investigation nor a review under the Victims’ Right to Review procedure prompted any further action. It came only after the victim commenced a private prosecution.

There seems to be a misconception that private prosecutions are abused by corporate entities to crush powerless individuals – one no doubt fuelled by the Post Office scandal – but this is simply not the case. We work on behalf of a number of charities, successfully prosecuting fraudsters who dishonestly claim to be raising money for the charity. These actions undermine public confidence in charitable giving and prevent help reaching the people the charities aim to support. The charities come to us because they can get no traction from the police.

There are now calls to reform the safeguards for private prosecutions, but this overlooks the fact there are already additional safeguards in place. First, the judge handling the application can decline to issue a summons or the Crown Prosecution Service can review and stop any private prosecution that it believes is not in the public interest. Moreover, if a judge or defendant lacks confidence in the prosecutor, they can also instruct the CPS to review a private prosecution. In our experience, private prosecutions rightly receive considerable scrutiny from defendants, judges and the CPS. Indeed, far more scrutiny than if they were handled by a government prosecutor.

Finally, there are calls for a new code for private prosecutors. As well as the 1996 act, a compulsory code that imposes strict legal obligations on all prosecutors, private prosecutors are already subject to a legal ‘duty of candour’ with the courts. A new code would itself be meaningless because it would not include any new legal or professional obligations to which a prosecutor is not already subject. Without an already existing legal basis in law, it could not improve on the 1996 act, nor the code of conduct which accompanies it.

Recognising the issues that arose in the Post Office scandal is key to successful reform. The disclosure process can sometimes involve difficult matters of judgement and it is proper that judges determine whether these judgements are correct. However, concealment of material that obviously undermines a prosecution is a very rare event indeed and contrary to the clear duties imposed by statute. Candidly, legislation can require persons to behave in a certain way but cannot, by itself, make it happen. Legislative changes are therefore wholly unnecessary.

It is our belief that private prosecutors should remain subject to the same legal and procedural rules as public prosecutors; we will only be letting down more victims of crime – a different form of injustice – if we make it more difficult to seek justice through private prosecutions.

Andrew Marshall is a partner at Edmonds Marshall McMahon, London