Private Prosecutions – A New Horizon?

On 2 October 2020, the Justice Select Committee published its report on Private Prosecutions: Safeguards. Following recent issues over the safety of a number of Post Office prosecutions, the Committee undertook an inquiry to examine the effectiveness of the safeguards in place to regulate private prosecutions in England and Wales.

The Committee agreed that existing safeguards that regulate private prosecutions are effective at filtering out weak claims. In addition, the current process that applies to all prosecutions ensures that private prosecutions are rigorously tested. However, they identified a number of simple measures that could aid further improvements.

It was felt that the structure of the current system was "rather haphazard" and any increase in private prosecutions would worsen the situation. They stated that without effective oversight of the whole system, the Government would struggle to identify any reforms that would enable the system to work and deliver better access to justice and outcomes to the public.

The report then makes a number of conclusions and recommendations:

• The Government should urgently review funding arrangements for private prosecutions to address the inequality of access, ensure a fair balance between the prosecutor and the defendant and ensure the most cost-effective use of public funds. Recoverable costs should be capped at legal aid rates and there should be no disparity between claims that can be made from central funds by prosecutors and defendants. Defendants should pay no more than would be paid had the CPS prosecuted them.
• The Government should strengthen the safeguards that regulate private prosecutions to ensure any organisation that conducts a substantial number of prosecutions is subject to the same regulatory standards and expectations of accountability and transparency as public prosecutors. The Government should consider enacting a binding code of standards, enforced by a regulator that applies to all private prosecutors and investigators.
• A central register of all private prosecutions in England and Wales should be established.
• The CPS should be notified when a private prosecution is initiated. This process should be integrated into the aforementioned central register.
• Every defendant who is privately prosecuted should be informed of his or her right to seek a review from the CPS. This should be implemented by a change to the Criminal Procedure Rules. Where the police have been involved there should be a duty on them to inform the defendant that they are to be prosecuted by a body other than the CPS and that they have a right to request a review.
• Organisations bringing significant numbers of private prosecutions should be subject to inspections by a public body. Any organisation found to be misusing their power to bring private prosecutions, should have this removed, or be required to obtain consent from the Attorney General or the DPP before they can initiate a prosecution.
• The Government should ensure that the rise in private prosecutions does not result in the development of a parallel system where public interest, accountability and transparency become secondary to private interests.

The future of private prosecutions will be forever changed should these recommendations be embraced. In all likelihood, those pertaining to safeguarding the process will be accepted by all. However, those relating to costs aspects and specifically capping recovery at legal aid rates may cause concern both for those who don’t have deep pockets and for organisations who may no longer be able to undertake this work. Indeed these recommendations could add credence of the existence of a two-tier criminal justice system rather than allow better access to justice.