BCL Associates Anoushka Warlow and Cindy Laing's article, discussing the safeguards surrounding the use of private prosecutions and their role in obtaining damages, has now been published by The Barrister.

You can read the full BCL Solicitors article here. Here's an extract from the article:

On 7 July 2020, the House of Commons Justice Committee heard evidence in connection with its inquiry into whether there are enough safeguards in place to prevent miscarriages of justice in private prosecutions. The inquiry followed a request made by the Criminal Cases Review Commission ('CCRC') arising out of concerns surrounding the safety of convictions secured in private prosecutions conducted by the Post Office.

Since 1999, the Post Office has privately prosecuted around 900 of its subpostmasters and counter staff for, primarily, offences of theft, fraud and false accounting based on evidence emanating from its 'Horizon' computer system. However, it is now clear that, amongst other problems, Horizon was liable to technical errors which gave the appearance of accounting shortfalls.

Notwithstanding these known issues, the Post Office continued privately to prosecute individuals seemingly without investigating or providing disclosure concerning the essential fallibility of the primary evidence relied upon.

When referring 47 of the resulting convictions for appeal earlier this year, the CCRC stated: ".in the context of [the Post Office's] combined status as victim, investigator and prosecutor of the offences in question - the CCRC considers that there are reasons for significant concern as to whether [the Post Office] at all times acted as a thorough and objective investigator and prosecutor.".

Sufficient safeguards

Any individual or company has the right to bring a private prosecution. That right, now found within section 6 of the Prosecution of Offences Act 1985, has long been justified as a 'historical right' which acts as a "useful constitutional safeguard against capricious, corrupt or biased failure or refusal of authorities to prosecute offenders against the criminal law" (Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435).

More recently, private prosecutions have been cited as an important remedy for victims who find that public authorities, as a consequence of financial cutbacks, are unable to investigate or pursue crimes committed against them.

Whilst the Justice Committee's inquiry will focus on cases brought by large organisations, any private prosecution carries by nature an inherent risk of unfairness to a defendant. A private prosecutor will almost by definition have a personal interest in the outcome of the case. That personal interest may result in prosecutions being pursued for improper purposes, may affect a private prosecutor's ability to pursue all reasonable lines of enquiry (including those pointing away from a defendant) or to comply with fundamental disclosure obligations. Put simply, the objectivity and impartiality of a state prosecution will be absent in every case.

When considering the safeguards available to counter these risks, the Justice Committee's attention was brought to the recent Code of Conduct (the 'Code') published by the Private Prosecutors' Association which provides a benchmark of best practice for all participants in the private prosecution process. The Code reminds private prosecutors (and their representatives) that they are Ministers of Justice "required to observe the highest of standards of integrity and of regard for the public interest". Whilst compliance with the Code is not mandatory, and is in any event open to potential abuse insofar as there will always remain an element of trust in the private prosecutor, there are significant costs consequences for those who proceed improperly.

Whilst its findings are awaited, the Justice Committee may well (and reasonably) conclude that adherence to the Code, together with the instruction of competent legal representatives and the ability of the DPP to take over where appropriate, offers sufficiently robust protection against potential unfairness. Perhaps, however, the more fundamental question is whether private prosecutions are increasingly being permitted for the wrong reasons, thereby fulfilling a function for which they were never intended.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.