Anoushka Warlow and Umar Azmeh discuss safeguards in private prosecutions with LexisNexis

Anoushka Warlow and Umar Azmeh discuss safeguards in private prosecutions with LexisNexis

BCL associates Anoushka Warlow and Umar Azmeh’s article titled ‘Are safeguards needed to bolster justice in private prosecutions?‘ has been published by LexisNexis.

Here is an extract from the article:

What is the background to the Committee’s report?

Between 1991 and 2015 the Post Office brought 918 successful private prosecutions against sub-postmasters, postmistresses, their assistants and other employees.

However, it has now become clear that the evidence upon which those prosecutions were based was unreliable.  In civil litigation brought on behalf of 550 sub-postmasters in 2019, Fraser J made very critical comments about the key evidence, the Horizon IT system, and the Post Office’s attitude and behaviour in its conduct of private prosecutions.  Prior to handing down one of his judgments, Fraser J referred the matter to the DPP in light of his ‘very grave concerns regarding the veracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known defects in the Horizon system.’

As a result, 47 of the convictions secured by the Post Office were referred for reconsideration by the CCRC and the Justice Committee were asked to undertake ‘a review of the circumstances and safeguards where an organisation is allowed to act as a prosecutor when it is also the victim and the investigator of an alleged offence’.  Evidence was heard by the Committee on 7 July 2020, and its report was published on 29 September 2020.

What were the key conclusions or findings?

The Committee noted that whilst the existing regulation of private prosecutions is efficient in rooting out weak prosecutions, a number of reforms ought to be enacted to strengthen regulation and oversight as the volume of private prosecutions continues to grow.

The Committee recommended:

  1. a binding and enforceable code of standards applicable to all private investigators and prosecutors;
  2. a central register of all private prosecutions;
  3. that the CPS be informed each time a private prosecution is commenced;
  4. that each defendant subject to a private prosecution should be informed of their right to seek a review from the CPS; and
  5. that the Government urgently review funding arrangements for private prosecutors.

The Committee also acknowledged that there was a ‘strong case’ that organisations bringing large numbers of private prosecutions be subject to inspections and, if that organisation is abusing its right to privately prosecute, that there should be the power to remove the organisation’s right to do so unless it secures permission from the state.

Should there be more regulation of private prosecutions and what form should it take?

As noted by the Committee’s Chair, Sir Robert Neill MP: “The power to prosecute individuals, and potentially deprive them of their liberty, is an onerous power which must be treated with the utmost seriousness.”.  Notwithstanding this, private prosecutors are not currently subject to the same standards and oversight as public prosecutors in their pre-trial conduct and investigations.

The position is exacerbated by the fact that private prosecutions carry inherent flaws: (i) the prosecutor invariably has a personal interest in the outcome which may affect their ability to pursue all reasonable lines of enquiry or comply with disclosure obligations, and (ii) it may be used as a cheaper vehicle for obtaining financial redress in cases where the civil justice system ought to be used.

As such, more regulation through, for example, a binding and enforceable code of practice is to be welcomed.  Public prosecutors are bound by such codes for good reason: it increases transparency and helps to ensure that those bodies act appropriately.  In circumstances where evidence submitted to the Committee suggested that the majority of private prosecutors are already upholding high standards, additional oversight by way of an enforceable code should be relatively uncontroversial, but will allow for the standardisation of the conduct of private prosecutions and ensure certainty and safeguards for defendants.

Looking at what the Committee found about the costs of bringing/defending private prosecutions – do you agree and why?

In calling for an urgent Government review of funding arrangements for private prosecutors, the Committee raised concerns surrounding:

  • the latest figures indicating that private prosecutions cost the taxpayer more than CPS prosecutions;
  • the prospect that the rise in the number of private prosecutions risks a “two-tier justice system” in favour of wealthy organisations;
  • the risk that convicted defendants likely pay greater costs than if they had been prosecuted by the state; and
  • the possibility that the favourable costs regime enjoyed by private prosecutors drives organisations to pursue private prosecutions rather than civil claims, thereby resulting in unnecessary expense to the taxpayer.

The Committee is right to point out that the fact that private prosecutors (regardless of the outcome) are entitled to claim investigation and prosecution costs from the public purse, which are not limited to the costs that the state would have incurred in bringing that same prosecution, is controversial.  So too is the inequality created by the fact that a defendant is unable to recover much, if any, of its defence costs if acquitted.

Whilst victims of crime should where appropriate be able to pursue justice where public authorities decline to do so, it is difficult to reconcile the increased costs of private prosecutions to the public purse with the often cited rationale for pursuing them; i.e. that state prosecutors do not have the funds to do so.

If reviewing the costs involved in private prosecutions can result in (1) less abuse of the criminal justice system where the civil system ought to be used, and (2) reducing inequalities in the system, costs reform can only be a positive move.


This article was originally published by LexisNexis on 08/10/20. You can read the full version on their website.

About the authors:

Anoushka Warlow is a solicitor at BCL specialising in corporate and financial crime, principally cases involving international bribery and corruption, commercial fraud, and money laundering. Anoushka advises both individual and corporate clients and has been involved in a number of highprofile domestic and international investigations conducted by the SFO, the U.S Department of Justice, HMRC, the FCA and the NCA.

Umar Azmeh is a solicitor at BCL, specialising in business crime, financial crime, and regulatory investigations. He has significant experience of criminal investigations involving money laundering and bribery, and has worked with clients on sanctions, tax, and proceeds of crime issues. He has expertise in commercial litigation, including civil fraud with an international dimension, and particularly where there is a criminal aspect. He has also advised both corporations and individuals on potential liability under the Proceeds of Crime Act 2002, the Fraud Act 2006, and the Bribery Act 2010, which includes drafting relevant policies for corporate clients.