Fears that the increase in private prosecutions poses a threat to criminal justice are misplaced.
A ‘private prosecution’ is a criminal prosecution pursued by a private person or body and not by a statutory prosecuting authority. The right to pursue a private prosecution is not a mere remnant of legal history. It is an important constitutional safeguard.
Before 1829, there was no organised state police force in England to investigate crime. Only in instances where the crime was committed against the state would it be involved in the prosecution – treason, for example.
In 1879 the office of the Director of Public Prosecutions (DPP) was created, establishing a public prosecutor whose role it was to prosecute in the most serious of cases, with the remainder of cases being prosecuted by the police or private citizens. This remained the system until the creation in 1985 of the Crown Prosecution Service (CPS), headed by the DPP, whose role it was to bring public prosecutions on behalf of the police. There also now exist a number of other special government and non-governmental bodies whose role includes investigating specific types of offence, and prosecuting them on behalf of the public. These include the Environment Agency, Health and Safety Executive and the Serious Fraud Office.
The right of an individual to pursue a private prosecution is expressly preserved by section 6(1) of the Prosecution of Offences Act 1985. While the need to pursue a private prosecution has greatly diminished since the creation of the CPS, the right to do so has been described as being of constitutional importance. In the 1975 case of Gouriet v Union of Post Office Workers, Lord Wilberforce described the right to bring a private prosecution thus: ‘… a valuable constitutional safeguard against inertia or partiality on the part of authority’.
The use of private prosecutions is on the increase. The police and other traditional law enforcement agencies have suffered enormous cutbacks and no longer have the resources to dedicate to certain types of crime. Private prosecutions therefore play a very important role in ensuring access to justice. In 2012, the lord chief justice commented: ‘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.’
It is this rise in the use of private prosecutions that has caused some to raise the question of whether there are sufficient safeguards in place to prevent abuse of the criminal system, and to ensure private prosecutors are complying with their disclosure obligations under the Criminal Procedure and Investigations Act 1996 (as amended).
It is worth pausing to consider what lies behind questions about safeguards. It is interesting to note that these questions are not being asked of public prosecutors, who continually act for the same investigative bodies that may be part of the same organisation or a separate organisation. This is despite the fact that there have been numerous failures of disclosure over the years by public prosecutors. Thus the question might be thought to be less concerned with disclosure compliance generally, but rather whether perceived commercial pressure could influence the disclosure process.
It is essential that private prosecutors instruct lawyers who understand, and are experienced in, the criminal disclosure regime (statutory tests for disclosure, Attorney General’s Guidelines, Criminal Procedure Rules and the Disclosure Protocol) and the obligation to act as minister of justice in the role as prosecutor The reason experienced lawyers are needed is because such matters require thought not only about the prosecution case, but that of the defence and how they might deploy the material.
The statute itself contains sufficient safeguards to prevent abuse of the criminal justice system and to ensure that private prosecutors are discharging their disclosure duties. If the defence are concerned that material has not been properly disclosed, they are able to make a section 8 application to the court for an order requiring the prosecutor to disclose the material. Any prosecution failure to disclose material so ordered may lead to the case being terminated, either because the prosecutor cannot comply with its duties of disclosure or because of a successful abuse of process argument put forward by the defence.
A further important safeguard is the DPP’s right to take over and discontinue a private prosecution where she is of the view that the Code for Crown Prosecutors is not met. The principal test applied to public prosecutions, known as the ‘Full Code Test’, is whether there is sufficient evidence to provide a reasonable prospect of conviction and, if so, whether the prosecution is in the public interest. The Full Code Test does not strictly apply to private prosecutions. However, there are good reasons why it is sensible to ensure that this test is capable of being met, as otherwise the case may be taken over and discontinued.
It is also important to note that any failure to disclose by the private prosecutor – if that stage has been met procedurally – may affect the evidential stage of the test resulting in discontinuance of the proceedings.
As to the influence of commercial pressure on disclosure, this is unthinkable to lawyers of integrity. Commercial pressure and disclosure co-exist in civil justice all the time and yet there is no body of evidence suggesting that disclosure is routinely tainted.
Returning to the criminal law, any suggestion that public authorities uphold higher standards than private practice is not sustainable and there is no evidence for such a presumption. If anything, a private prosecutor is likely to come under greater scrutiny and will therefore have to go to greater lengths to ensure they can demonstrate transparency in the prosecution process. The considerable care, attention and direction given to the process by experienced prosecutors bears fruit.
Tamlyn Edmonds is a founding director at Edmonds Marshall McMahon, which offers private prosecution packages to companies and individuals