Finding the balance — public law duties in private prosecutions

The ongoing Post Office Horizon Public Inquiry raises once again the issue of private prosecutions in England and Wales and the perils for private prosecutors and defendants facing prosecution.

Between 2000 and 2014, more than 700 Post Office employees, including sub post masters and mistresses, were prosecuted and convicted by the Post Office when faulty accounting software made it appear that money had been stolen from branches. The prosecutions relied heavily on information from the Horizon computer system which had been introduced in 1999. It was subsequently established that the computer system was flawed, leading to the overturning of many convictions and claims for compensation totalling £58 million.

The cases have necessitated the instigation of a statutory public inquiry, which remains ongoing. In his recent opening statement, counsel to the inquiry Jason Beer KC outlined the inquiry will put the conduct of lawyers during the course of these cases under the spotlight (Jason Beer KC).

Given the well-publicised issues over public funding of the police and prosecuting authorities, it is perhaps unsurprising that the increase in private prosecutions over recent years looks set to continue. Despite the perils of bringing private prosecutions, there is a growing trend for organisations and agencies to consider bringing such actions. It is therefore important that organisations understand the risks of private prosecutions and how to safely navigate them.

Bringing a private prosecution

A private prosecution, under the Prosecution of Offences Act 1985, can be brought by a private individual or entity who/which is not acting on behalf of the police, Crown Prosecution Service or other prosecuting authority nominated by the state.

A private prosecutor must maintain the same standard of conduct as a public authority, including a duty of full and frank disclosure:

In R (on the application of Kay and another) v Leeds Magistrates’ Court and Another [2018] EWHC 1233 (Admin) the Divisional Court (Sweeney J and Gross LJ) addressed the importance of the duty of candour.

In that case, the private prosecutor applied at Leeds Magistrates Court for summonses against the defendants alleging four counts of fraud. However, he failed to notify the court that he had lost in civil proceedings against the defendants who were now seeking costs and compensation from him through arbitration. Furthermore, the private prosecutor intended to use the fact of criminal proceedings against the defendant to stall or frustrate the defendant’s claim against him.

The Divisional Court set out the matters that must be considered by the court when deciding whether to issue a summons. This emphasised the private prosecutor’s duty of full and frank disclosure:

1. The magistrate 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 has the necessary authority to prosecute.
2. If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so — most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.
3. Hence the magistrate should consider the whole of the relevant circumstances to enable him to satisfy himself that it is a proper case to issue the summons and, even if there is evidence of the offence, should consider whether the application is vexatious, an abuse of process, or otherwise improper.
4. Whether the applicant has previously approached the police may be a relevant circumstance.
5. There is no obligation on the magistrate to make enquiries, but he may do so if he thinks it necessary.
6. A proposed defendant has no right to be heard, but the magistrate has a discretion to:
   (a) Require the proposed defendant to be notified of the application.
   (b) Hear the proposed defendant if he thinks it necessary for the purpose of making a decision.

The perils of private prosecutions

In July 2020, the House of Commons Justice Committee launched an inquiry to assess the sufficiency of safeguards surrounding the use of private prosecutions in the criminal justice system. The inquiry focused on cases brought by large organisations against individuals when the organisation is also the alleged victim of the offence. Concerns relating to the use of private prosecutions include that they are (potentially) motivated by commercial purposes, ulterior than to achieve justice in the criminal case, and whether they are conducted to the same procedural standard as those undertaken by a public prosecutor.

The benefits to bringing a private prosecution are obvious. A private prosecutor has more control over the conduct of proceedings and is not reliant on public authorities or their budgetary constraints. Prosecutors can bring about swifter conclusions than in the civil arena and can secure effective results such as compensation or director disqualification orders, preventing a convicted defendant of being in charge of running a company. A successful applicant can also recover their legal costs for bringing the case to court.

However, the disadvantages are that the applicant bears the costs of bringing the case and does not possess the investigative powers of the police to compel people to attend interview or serve up documentation. The private prosecutor is also always at the mercy of the Director of Public Prosecutions, who has the power to take over a private prosecution at any time and discontinue the case. Courts will also scrutinise any application to bring a private prosecution, wary of the argument that a private prosecution can be an oppressive tool, often brought by wealthy organisations against individuals.

The Horizon Public Inquiry

The Horizon miscarriage of justices and the subsequent statutory public inquiry illustrate the pitfalls in bringing a private prosecution and the necessity in instructing experienced and objective lawyers as early as possible to ensure independence at all stages, and ensure that disclosure issues are addressed and reviewed in a transparent way. The Post Office cases demonstrate the problems that can arise when the lines between victim, investigator and prosecutor become blurred. Lengthy and costly proceedings in the appellate courts as well as the reputational and commercial damage in the event of an adverse finding are just some of the consequences of bringing an improper private prosecution.