Private prosecutions: a blurred line between recovery of damages and public justice? – Anoushka Warlow and Cindy Laing published in The Barrister

Private prosecutions: a blurred line between recovery of damages and public justice? – Anoushka Warlow and Cindy Laing published in The Barrister

BCL associates Anoushka Warlow and Cindy Laing discuss the safeguards surrounding the use of private prosecutions and their role in obtaining damages, with The Barrister Magazine.

You can view the full article on The Barrister website here or read an extract from the article below:

‘On 29 September 2020, the House of Commons Justice Committee (‘the Committee’) published its report in connection with its inquiry into whether there are enough safeguards in place to prevent miscarriages of justice in private prosecutions. The Committee’s report followed a request made by the Criminal Cases Review Commission (‘CCRC’) arising out of concerns surrounding the safety of convictions secured in private prosecutions conducted by the Post Office.

Since 1999, the Post Office has privately prosecuted around 900 of its subpostmasters and counter staff for, primarily, offences of theft, fraud and false accounting based on evidence emanating from its ‘Horizon’ computer system. However, it is now clear that, amongst other problems, Horizon was liable to technical errors which gave the appearance of accounting shortfalls.

Notwithstanding these known issues, the Post Office continued privately to prosecute individuals seemingly without investigating or providing disclosure concerning the essential fallibility of the primary evidence relied upon.

When referring 47 of the resulting convictions for appeal earlier this year, the CCRC stated: “…in the context of [the Post Office’s] combined status as victim, investigator and prosecutor of the offences in question – the CCRC considers that there are reasons for significant concern as to whether [the Post Office] at all times acted as a thorough and objective investigator and prosecutor…”.

Sufficient safeguards

Any individual or company has the right to bring a private prosecution. That right, now found within section 6 of the Prosecution of Offences Act 1985, has long been justified as a ‘historical right’, which acts as a “useful constitutional safeguard against capricious, corrupt or biased failure or refusal of authorities to prosecute offenders against the criminal law” (Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435).

More recently, private prosecutions have been cited as an important remedy for victims who find that public authorities, as a consequence of financial cutbacks, are unable to investigate or pursue crimes committed against them.

Whilst the Justice Committee’s inquiry focused on cases brought by large organisations, any private prosecution carries by nature an inherent risk of unfairness to a defendant. A private prosecutor will almost by definition have a personal interest in the outcome of the case. That personal interest may result in prosecutions being pursued for improper purposes, may affect a private prosecutor’s ability to pursue all reasonable lines of enquiry (including those pointing away from a defendant) or to comply with fundamental disclosure obligations. Put simply, the objectivity and impartiality of a state prosecution will be absent in every case.

The Committee’s report considered the safeguards required to counter these risks noting the recent Code of Conduct (the ‘Code’) published by the Private Prosecutors’ Association, which provides a benchmark of best practice for all participants in the private prosecution process. The Code reminds private prosecutors (and their representatives) that they are Ministers of Justice “required to observe the highest of standards of integrity and of regard for the public interest”.

Whilst there are potentially significant costs consequences for those who proceed improperly, compliance with the Code is not currently mandatory. As such, the Committee’s report stated that “the duty to comply with the code should have legislative force…in order to achieve parity with public prosecutors”[1] and have recommended a binding and enforceable code of standards applicable to all private investigators and prosecutors.

The Committee has further recommended: a central register of all private prosecutions; that the CPS be informed each time a private prosecution is commenced; that each defendant subject to private prosecution should be informed of their right to seek a review from the CPS; and that the Government urgently review funding arrangements for private prosecutors.

The Committee acknowledged that the volume of private prosecutions had grown significantly in recent years noting, for example, that the number of private prosecutors claiming costs from central funds had grown from 32 in 2014-15, to 276 by 2019-20. In light of those figures, perhaps the more fundamental question for the Committee might have been whether private prosecutions are increasingly being permitted for the wrong reasons, thereby fulfilling a function for which they were never intended.’


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.

Cindy Laing is a solicitor specialising in business crime and serious and general crime. Cindy has had particular experience in advising high-profile individuals facing complex criminal investigation and prosecution for sexual offences brought the CPS, as well as fraud, bribery and corruption offences brought by the SFO and the FCA.