Parliament should consider formal regulation of the growing practice of private prosecutions to ensure the power is not abused, the chair of the Bar Council has said.
Sam Townend KC said a review of private prosecutions should be launched in response to the Post Office scandal, in which about 3,500 postmasters were accused of theft, fraud and false accounting, and more than 700 prosecuted in cases brought by the organisation.
Despite the Post Office believing it was a victim of criminal behaviour, it was also able to act as prosecutor. “Those bringing private prosecutions almost inevitably have a vested interest,” said Townend.
Legal experts point to a significant growth in private prosecutions over the past 10 years as significant funding cuts to the police and Crown Prosecution Service (CPS) have limited their ability to investigate and prosecute crimes.
The CPS, which was created in 1985 to separate prosecutions from investigations, does not keep central data on the number of private prosecutions.
The government confirmed earlier this week that it was considering whether it was appropriate for public or publicly owned bodies to have the power to bring private prosecutions.
“If we are to make sure that a scandal such as [the Post Office] can never happen again, we need to look at the way in which private prosecutions such as these have been undertaken,” the minister who oversees postal services, Kevin Hollinrake, said.
Among the public bodies able to bring private prosecutions are the Civil Aviation Authority, the Health and Safety Executive, the Gambling Commission, the Maritime and Coastguard Agency and the Food Standards Agency.
Any individual, private company or charity may also bring private prosecutions under the 1985 Prosecution of Offences Act. They must apply to a magistrates court to proceed, and have the resources to fund the prosecution upfront, although their costs may be reimbursed by the CPS later.
Many private prosecutions involve complex fraud cases, requiring detailed and specialist investigations. “The police and the CPS don’t remotely have the resources to undertake that work,” said Mark Newby of the Law Society.
But they are increasingly being brought against shoplifters and other small-scale criminals as under-resourced law enforcement agencies have prioritised other crimes.
David McKelvey, a former police officer who set up TM Eye, a company that investigates crimes, in 2008, has brought about 1,300 private prosecutions over the past 10 years. His success rate has been 99.9%, he said. “Effectively the police have withdrawn from certain types of crime. So victims are forced to look at other options in order to get justice.”
McKelvey employs former detectives to gather evidence before lawyers launch a prosecution, and has recently brought cases involving high street names, such as Boots and Tesco. He does not receive fees but applies for costs to be paid from the public purse at the end of the case.
Restrictions on private prosecutions would be catastrophic, he said. “The result will be that no one will be prosecuting people engaging in shoplifting, burglary and other low-level crimes. The Post Office prosecutions went very wrong. But if the system has integrity, private prosecutions are a fantastic way to get justice.”
The RSPCA said in 2021 that it would end its practice of privately prosecuting people accused of animal cruelty and instead turn its investigations over to the CPS. The charity secured 1,432 convictions, a 93.7% success rate, in 2019, but it said cases were becoming more complex and that many involved “hardened criminal gangs”.
One of the most high-profile private prosecutions in recent decades was launched by the parents of the black teenager Stephen Lawrence in 1994 against three suspects in his murder. It failed to secure convictions but kept their fight for justice in the public eye.
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“Private prosecutions sometimes arise when the state declines to prosecute, and a person decides to press ahead with their own prosecution [as in the Lawrence case],” said Peter Hungerford-Welch, a professor of law at City, University of London. “But more often, it’s when the state simply doesn’t have the resources to mount the prosecution itself.”
He cited a successful private prosecution brought in 2014 by Virgin Media involving the theft of intellectual property. “It was a specialist area of law, and there wasn’t the capacity in the police or CPS to deal with it,” he said.
The government has not made any proposals for change, and did not adopt all the recommendations produced in 2020 by the parliamentary justice committee after an inquiry.
The committee’s report said: “A rise in the number of private prosecutions risks the ‘prospect of a two-tier justice system’. The gap in the enforcement of fraud means that at present, wealthy organisations can seek justice via a private prosecution, but elderly and vulnerable victims of fraud cannot.”
The Private Prosecutors’ Association said it would engage fully with any consultation the government launched, and encouraged those undertaking private prosecutions to adhere to its code of practice.
But, said Ben Ticehurst, the association’s vice-chair, “the real issue is that the government needs to adequately fund our criminal justice system. A well-resourced and funded criminal justice system goes a long way to minimise the possibility of miscarriages of justice”.
According to Newby, there is “no straightforward fix that would not increase the CPS workload. I’m not sure the CPS would welcome having every private prosecution case dumped on them, as they simply haven’t got the resources to deal with that.”
How to bring a private prosecution
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Gather evidence of the alleged crime, possibly using a private investigator.
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Hand over evidence to a lawyer, who will review whether there is sufficient evidence to bring a criminal prosecution.
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Make an application at a magistrates court to bring a private prosecution. This will be reviewed and either granted or rejected by a district judge.
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The CPS may review the case at any time if the case is referred by the defendant, the private prosecutor or the court. The CPS can take over cases, either to proceed or discontinue.
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If you proceed privately, the case will (eventually) be heard in court.
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At the end of the case your lawyers can apply for costs to be reimbursed from the defendant and/or the public purse.
