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11 Apr 2024

The Post Office Scandal and Private Prosecutions – Some Proposals for Reform

The Post Office scandal has ignited a lively debate about the future of private prosecutions:

  • A number of politicians, lawyers and academics have called for their abolition.
  • Some have proposed curtailing the right of organisations to prosecute privately where they are the alleged victim.
  • Others have suggested that reform is unnecessary because the Post Office scandal is a historic anomaly never to be repeated.

This article argues that the right response lies somewhere in the middle.

For many decades, private prosecutions languished as an interesting but obscure backwater of the criminal law. That changed around 15 years ago, when private prosecutions started to mushroom in both number and visibility.

A nascent industry emerged, including a Private Prosecutors Association, a non-binding Code of Practice and law firms openly marketing their expertise in how to bring private prosecutions. That, in turn, led to a healthy degree of scepticism, including from some prominent judges.

So whilst the Post Office scandal has ignited the debate about private prosecutions, the competing views are not new.

Sometimes the right response to a scandal is wholesale reform. Other scandals should prompt a more measured reaction.

When it comes to private prosecutions, the Post Office scandal falls into the latter category. It provides evidence of an organisation repeatedly abusing the legal right enshrined in England and Wales to bring a private prosecution.1 But extrapolating from the conduct of a single organisation invariably leads to skewed conclusions.

In the right hands, private prosecutions have proved a valuable means of convicting those who have committed serious crimes ranging from complex frauds (which resource-strapped law enforcement agencies are sometimes unable to investigate) to the sexual abuse of children.

It would also be a mistake to assume that the failures in evidence-gathering and disclosure seen in the Post Office scandal would necessarily have been avoided had the police and CPS handled these cases instead. That much is apparent from recent evidence in the public inquiry about the position in Scotland, where the right to prosecute privately is far more restricted than in England, but where a public prosecutor (the Procurator Fiscal) still authorised the prosecutions of sub-postmasters.

Investigations conducted by law enforcement bodies can become infected by precisely the same failures as those conducted by the Post Office – not pursuing reasonable lines of enquiry identified by the suspect in interview; an improper relationship with the alleged victim; and a fundamental lack of understanding of how disclosure should operate.

But in this firm’s experience at least, these failures tend to occur more frequently in private prosecutions.

For every private prosecution properly brought for the right reasons on reliable evidence, we see a worrying number of private prosecutions driven entirely (or largely) by impermissible motives, including as leverage to encourage the settlement of a parallel civil claim. Both the investigation and prosecution stages drag on for months or sometimes years, achieving their short-term goal of intimidation, but are then withdrawn by the private prosecutor or halted by the courts (for a recent example of the latter, see Morjaria v Westminster Magistrates Court & others [2023] EWCA Civ 1338, a private prosecution stayed by the High Court as an abuse of process).

The answer as to why this happens relatively frequently is not that there is something inherently flawed with the principle of a private prosecution (such that it should be abolished outright).

Instead, in practice, two factors seem to combine to improper effect:

  • First, when prosecutions can be paid for, there is an inevitable risk that some clients seek (and their lawyers give) advice founded on commercial self-interest; this professional ethical failure translates into legal support for prosecutions that are flawed or abusive.
  • Second, the existing safeguards at the start of a private prosecution do not work as well as they should, failing to weed out the flawed or abusive cases at a pre-court stage.

If this analysis is right, doing nothing is not an option.

But what should be done to reduce the risk of flawed or abusive private prosecutions and to ensure that private prosecutors (and their lawyers) act as ministers of justice in the same way as public prosecutors?2

It is suggested that measured reform, rather than outright abolition, is the right path to take.

These reforms should target the underlying problems of:

    1. commercial self-interest (on the part of private prosecutors and their lawyers), and
    2. inadequate independent scrutiny of proposed private prosecutions before a defendant is summonsed to court (the CPS can take over and discontinue a private prosecution but only after the defendant has been summonsed and court proceedings are afoot).

This article makes four recommendations:

    1. First, it is proposed that solicitors and counsel who advise on private prosecutions should have their fees capped according to rates set by the Government. These rates should be roughly the same or slightly higher than the equivalent rates those lawyers would charge if conducting public prosecutions but (significantly) lower than standard City law firm rates. Whilst this may seem like a disproportionate or even retrograde response to the problem of commercial self-interest, few things would focus lawyers’ minds on the all-important principle that they must conduct private prosecutions as public servants other than paying them as such. Indeed, there is recent precedent for regulating legal fees in the public interest. The general licences issued by HM Treasury restrict fees payable to lawyers who represent designated or sanctioned persons. Those lawyers must work under general licences that impose overall and hourly rate caps for six-month periods. These restrictions are not inflexible since special licences are available if legal fees are likely to exceed the caps, i.e. if the lawyers can justify why a case is unusually complex and requires more time.3 Applying the same capped fee structures to private prosecutions would not fetter access to justice for alleged victims. There would remain competent and experienced criminal solicitors and counsel willing to advise and, where appropriate, bring private prosecutions at the capped rates (just as they do for public prosecutions). If implemented, wealthy individuals and companies would no longer be able to invest unlimited resources in deploying the criminal law to exact revenge on, or extort, their adversaries.
    2. Second, it is proposed that, before a private prosecutor applies to court for a summons for a putative defendant (nearly always the first step in the court process), they must, without exception, refer their case to the police or other law enforcement body. This body must consider the evidence gathered by the private prosecutor and decide whether it will commence a (public) prosecution. If it refuses, the reasons for the refusal must be recorded on a prescribed form. If – despite this refusal – the private prosecutor presses ahead with applying for a summons, the form must be disclosed to the judge (as it would in any event pursuant to the private prosecutor’s duty of candour). The judge would only be able to issue a summons after considering the reasons for refusal. Such a refusal would not necessarily lead to the summons being refused; far from it. Many summonses are issued and private prosecutions properly brought following the refusal of law enforcement to investigate. The courts have long acknowledged that state inaction is one of the key reasons for retaining private prosecutions. But there are would-be private prosecutors who do not wish to involve the state because they fear they will “lose control” of their case – where “losing control” is a euphemism for an unwillingness to subject their case to the type of independent scrutiny that would derail it. And yet a private prosecutor acting properly as a public servant and a minister of justice should welcome (or at least not shy away from) such scrutiny. The precise reasons for a refusal may also provide valuable material that the judge would be able to take into account in determining whether to issue a summons.
    3. Third, it is proposed that the legal framework for issuing a summons should be strengthened by amending the Criminal Procedure Rules. R (Kay) v Leeds Magistrates Court [2018] EWHC 1233 summarises the existing framework: the court on an application for a summons must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant (the person laying the information to obtain the summons) has the necessary authority to prosecute. If those requirements are established, Kay states that the court ought to issue the summons unless there are compelling reasons not to do so (e.g. the application is vexatious, an abuse of process or otherwise improper). The courts have sometimes observed that this threshold is high (see, for example, Boris Johnson v Westminster Magistrates Court [2019] EWHC 1709). However, the courts have also acknowledged that it is less onerous than that which would be applied by the CPS in deciding whether to charge a suspect (see R (on the application of Charlson) v Guildford Magistrates’ Court [2006] EWHC 2318). The curious Kay formulation of whether the “essential ingredients of the offence are prima facie present” is, in practice, a lower (or at least more ambiguous) evidential threshold than that found in the Code for Crown Prosecutors, namely whether an objective, impartial and reasonable jury, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. It is this disparity that the Criminal Procedure Rules should address.

They should be amended to impose on the informant an obligation to provide the court with detailed written grounds explaining (by reference to the factors outlined in the Code for Crown Prosecutors):

    1. why there is sufficient reliable, admissible evidence to provide a realistic prospect of conviction,
    2. why the prosecution is in the public interest, and
    3. whether there are any other matters that the court should be aware of, having regard to the private prosecutor’s duty of candour, including full details of any extant or contemplated proceedings involving the same or related parties.

These grounds must be settled by experienced criminal counsel and include details of their recent public prosecution experience. If the summons is granted, the grounds must be disclosed in full to the suspect when they are sent the summons – much as the grounds for a restraint order or search warrant fall to be disclosed to the affected party. Although some private prosecutors do already follow these requirements to the letter, the problem is that they are not codified into a rule that obliges everyone to follow them.

  1. Fourth, and finally, costs. If a private prosecution leads to the conviction of a defendant, it is fair and logical that a reasonable proportion of the prosecution costs should be recouped by the private prosecutor, either from central funds (i.e. the state/taxpayer) and/or the convicted defendant. However, if the private prosecution is withdrawn or leads to an acquittal, the general principle is that the private prosecutor can still recoup a reasonable proportion of its costs from central funds.4 This potential for recovery should be abolished for private prosecutions that do not lead to convictions. Whilst this might disincentivise those least able to afford private prosecutions, it is a price worth paying to encourage would-be private prosecutors to think twice before committing money they may never see back – and to encourage their lawyers to give realistic advice about the prospects of conviction.

A scandal involving one private prosecutor should not spell the end for all private prosecutions. But the risks inherent in private prosecutions have been hiding in plain sight for too long. There is now the political will and the public support to instigate reform aimed at eliminating the potential injustice they can cause.

 

  1. Where this article criticises the conduct of the Post Office in bringing private prosecutions, it does so solely by reference to the findings of the Court of Appeal (Criminal Division), which has quashed the convictions of numerous sub-postmasters.
  2. See R (on the application of Ayodeji Holloway) and Harrow Crown Court and Adamneet Singh Bhui, Jimneet Singh Bhui and Gurpinder Singh Bhui [2019] EWHC 1731 (Admin), in which the prosecutor’s lack of objectivity was strongly criticised.
  3. Such licences also permit the payment of experts (such as financial investigators) which may be a necessary part of preparing a private prosecution.
  4. Under section 17 of the Prosecution of Offences Act 1985: the offence must be indictable (i.e. capable of being tried in the Crown Court) and the private prosecutor must not be a public authority.
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