Private prosecutions – is this the dawn of a new era?

Answer

A private prosecution is a prosecution started by a private individual or entity (eg, a company or local authority) who brings a criminal case against a defendant in his or her own name, as opposed to the state. Examples of organisations that regularly prosecute cases in the courts of England and Wales are local authorities, health and safety executives, the Environment Agency and utility companies. Individuals can also prosecute before the court, if they satisfy certain criteria.   

Private prosecutions are suitable for individuals or companies who have been the victims of criminal acts committed against them by others. While the private entity will need to fund the costs of bringing the prosecution, they can recover these costs from the defendant and/or the state.

The right to bring such prosecutions is set out in the Prosecution of Offences Act 1985.

Any private prosecution would still need to meet the two-stage evidential and public interest test in order to progress through the courts.

A brief history

There are private entities that have been able to act as both investigator and prosecutor in a situation where they have also been the victim. In contrast, under the Crown, the police act as investigator, the Crown Prosecution Service (CPS) as prosecutor and the victim is a third party. Having separate entities carrying out individual, yet cohesive functions ensures that there are checks and balances in the process.

Following an external inquiry earlier this year, Parliament’s Justice Select Committee carried out a review of the private prosecutions procedure and, as a result, recommended a number of safeguards to improve the transparency of the process.

The new landscape

The Justice Select Committee has stated that there should be an urgent review of the private prosecutions funding arrangement. As mentioned above, a private entity seeking to carry out a prosecution must have the funds to do so. The review should look at levelling the playing field to ensure equality of access to the right to prosecute.

There should be a cap to any costs recoverable to the private prosecutor at legal aid rates and there should be no expectation that the Defendant would pay more than they would if the CPS had prosecuted them.

The Committee stated that the government should look at introducing a system that would regulate private prosecutions. Therefore, any private entity carrying out a substantial number of prosecutions would have to meet the same regulatory standards and expectations as the CPS. Following on from this, the Committee recommended the introduction of a binding code of standards that would be enforced by a regulatory body which would apply to all private prosecutions.

It has been recommended that a central register of all private prosecutions should be created in England and Wales and every time a private prosecution is commenced, the CPS should be notified through the central register.

All defendants who are privately prosecuted should be informed of their right to seek a review from the CPS.

Analysis

The changes suggested by the Committee will certainly have a profound impact on the private prosecutions landscape, if adopted. The disparity between legal aid recoverable rates and the cost of bringing a prosecution is often very large. Private entities would have to consider whether they feel that prosecution is financially viable.

The collection of prosecution data and a central register of prosecutions brought would certainly create a more transparent and collaborative process. 

The Committee's recommendations will be seen as somewhat of an overhaul of the private prosecutions landscape. The government will need to consider the recommendations in relation to funding and costs carefully to ensure that this does not have an adverse effect on the number of prosecutions that private entities make.

It will be interesting to see how the government will respond to these changes and it will be the role of legal advisers to ensure that private entities (individuals, local authorities and companies) are made aware of any changes ahead of bringing prosecutions.

Ayaz Saboor is a second-year trainee solicitor at DWF. He is based at the firm’s Manchester office.