Anoushka Warlow and Cindy Laing discuss the safeguards surrounding the use of private prosecutions and their role in obtaining damages.

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 sub-postmasters 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.

Criminal justice as a means to obtain damages

The criminal justice system is concerned with the guilt or innocence of a defendant, and if guilty, their punishment, whereas the civil courts seek to remedy wrongs suffered by injured parties.

As such, an individual or company seeking to recover misappropriated sums would ordinarily be expected to seek redress via civil proceedings. Such proceedings are not without risk: most significantly, the costs liabilities that may arise if the proceedings fail. However, a private prosecutor:

  • has the right to seek a compensation order: R v Somaia [2016] EWCA Crim 2267;
  • is permitted to have 'mixed' motives in commencing proceedings (including in relation to compensation). It is only where a motive is 'oblique', i.e. so dominant and so unrelated to the criminal proceedings that it renders them an abuse of process: R (G) v S and S [2017] EWCA Crim 2119; and
  • is able, even in the event of an acquittal, to recover investigation and legal costs reasonably incurred from central funds (i.e. public resources). Recoverable costs are not limited to those which the CPS would have incurred had it brought the case: Fuseon Limited v Senior Courts Costs Office [2020] EWHC 126 (Admin).

Whilst a prosecution commenced for the sole reason of obtaining a compensation order may be improper, a prosecution commenced with financial recovery as its primary motivation may be permissible so long as the prosecutor can also argue, for example, that his motivation is allied with the public interest in seeing criminals brought to justice and deprived of the proceeds of their offending. That is not a particularly difficult hurdle.

The above jurisprudence has arguably opened the gates of the criminal courts to private claimants seeking a low-risk mechanism for obtaining compensation for damages, with the costs being met from public resources even in the event of an acquittal. Indeed, private prosecutions - increasingly advertised as a cheaper and more attractive 'alternative' to civil proceedings - are gaining popularity.

Whilst of course victims of alleged wrongdoing should be able to seek compensation, the use of the criminal justice system for this purpose is far removed from the original justification for private prosecutions as an important constitutional safeguard against inactivity or partiality by the state.

When viewed from the easily-forgotten perspective of a defendant who, even if acquitted, may face devastating consequences and will be able to recover only a fraction, if anything, of their defence costs, the Justice Committee may wish to consider whether private prosecutions continue to perform a necessary function, or whether the focus should instead be on ensuring that public authorities are properly resourced to investigate and prosecute all cases of criminal wrongdoing.

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