The House of Commons Justice Committee has announced that it is to launch an inquiry into whether there are enough safeguards in place to prevent miscarriages of justice in private prosecutions. BCL’s Anoushka Warlow discusses how the inquiry will focus on cases brought by large organisations against individuals where the organisation is also the alleged victim of the offence.
The announcement follows a request for a review made to the Attorney General by the Criminal Cases Review Commission arising out of concerns surrounding the safety of a number convictions secured in private prosecutions conducted by the Post Office.
Since 1999, the Post Office has privately prosecuted around 900 of its sub-postmasters and counter staff for, primarily, offences of theft, fraud and false accounting based on evidence emanating from its ‘Horizon’ computer system.
It is now clear, following a landmark civil case brought against the Post Office by 550 of its sub-postmasters (Bates v Post Office  EWHC 3408 (QB)), that Horizon was not only liable to technical errors which gave the appearance of accounting shortfalls but could also be accessed remotely by other individuals. So overwhelming was the evidence of unreliability that the court equated the Post Office’s repeated assertions that Horizon was robust to the ‘21st century equivalent of maintaining that the earth is flat’.
Notwithstanding the known issues with Horizon, the organisation continued to prosecute hundreds of individuals without properly investigating or providing any disclosure relating to the essential fallibility of the evidence on which it relied. It is not yet known how many of its 900 prosecutions resulted in convictions, but 47 have so far been referred for appeal.
In accepting the matter for inquiry, Chair of the Justice Committee, Sir Bob Neill, said: “The Post Office Horizon cases are a clear example of a large organisation acting as investigator and prosecutor of alleged crimes in which they were also the victim. There is a real risk that organisations in such circumstances will be faced with a conflict of interest that could call into question their ability to conduct an objective investigation and prosecution. The Criminal Cases Review Commission’s referral of 47 Horizon cases for appeal demonstrates a real need to re-examine the question of safeguards in this area of criminal justice.”
Any individual or company has the right to bring a private prosecution under section 6 of the Prosecution of Offences Act 1985. However, by its nature a private prosecution carries an inherent risk of procedural unfairness because the prosecutor, usually also the alleged victim, will almost by definition have a personal interest in the outcome of the case. That personal interest may affect their ability to exercise objective judgment including as to the steps required to pursue all reasonable lines of inquiry and to comply with onerous but fundamental disclosure obligations.
When assessing what safeguards can and should be implemented to counter this inherent risk, the Justice Committee will no doubt consider the need for organisations to instruct competent (perhaps external) legal representatives and to follow the Code for Private Prosecutors recently published by the Private Prosecutors’ Association which aims to provide – for the first time – a benchmark of best practice for all participants in the private prosecution process. The comprehensive Code (adherence to which is not currently mandatory) reminds all private prosecutors and those representing them that they are Ministers of Justice “required to observe the highest of standards of integrity and of regard for the public interest”. Significant costs consequences can arise for those who proceed improperly.
The Justice Committee’s call for written evidence closes on 1 July 2020 and oral evidence will be heard at a session scheduled to take place on 7 July 2020.