Private prosecutions — the future?

It is a little known fact that it is open to anyone to bring a private prosecution against an offending party, a right that has been available since the inception of the English legal system.

Indeed, contrary to public perception, it is only relatively recently that the ability to bring public prosecutions by prosecuting authorities has existed. The Crown Prosecution Service (CPS) was only created in 1986 and the majority of fated historic prosecutions resulted from prosecutions brought by private parties.

However, private prosecutions have continued without fanfare alongside public prosecutions undertaken by public enforcement bodies such as the CPS, the Serious Fraud Office (SFO) and the Financial Conduct Authority (FCA) with the right to bring private prosecutions being preserved by the Prosecution of Offences Act 1985.

Certain private bodies have widely used the right to bring private prosecutions, most notably media and telecommunications organisations, charities such as the RSPCA and public bodies such as the Royal Mail.

It is also true to say that the public’s recent awareness of the right to bring private prosecutions has been heightened with recent high profile cases and reviews of the system which have identified their benefits and potential pitfalls with private prosecutions.

In summary, there is a trend towards an increase in private prosecutions which is due to a number of reasons.

Private prosecutions allow for a relatively speedy and cost-effective way of bringing offenders to account, independently of any civil action which may not be as cost-effective or provide the remedies sought. They have the ability to provide immediate and proportionate remedies to victims who seek to take an active role in obtaining justice for the wrongdoing they have suffered.

Add the attraction that costs incurred in bringing a private prosecution can be recovered even in circumstances when the defendant is acquitted and compensation is often ordered to be paid to the victim following a successful conviction and you can see why it is an option that is increasingly being considered by those seeking redress, often as an alternative to a civil action. Companies and insurers are now more likely to take this route than in the past as an alternative to remedies through the civil courts.

Whilst open to the majority of current offences, private prosecutions lend themselves more to certain types of offending than others, with the prosecution of fraud being the best example. It is for that reason that private entities in sectors affected by fraud, the insurance sector included, are adopting a pro-active approach to private prosecutions and taking on offenders in the criminal courts without recourse to the prosecuting authorities.

Recent funding and resourcing constraints on the police and prosecuting authorities have led to a need to prioritise the investigation and prosecution of certain offences at the expense of others.

Take fraud as an example. It could be argued that prosecuting fraud is not as much of a priority for the CPS as prosecuting other offences which affect public perception of harm. With the prosecuting authorities adopting that approach, it results in victims seeking to get justice through other means, i.e. through bringing their own private prosecutions or through the civil courts.

So what are the benefits of bringing a private prosecution to an insurer?

There is an important caveat that the CPS has the power to intervene and discontinue any private prosecution if it considers that there is either insufficient evidence or there is no public interest in the prosecution being brought. However, the risk of CPS intervention can be mitigated by engaging with the CPS from an early stage.

That said, private prosecutions serve as a useful deterrent as they send a message that such offending behaviour will not be tolerated. Private prosecutions allow you as the prosecutor to drive the proceedings with the resulting timeframe of a prosecution reaching a conclusion being comparable, if not better, than in many civil remedies.

It is, therefore, an attractive tool for those who operate in sectors with a high proportion of fraudulent activity, the insurance industry being one of them.

So what of the safeguards to ensure fairness and proportionality with bringing a private prosecution and do they work?

The Justice Committee, chaired by Bob Neill MP, published a report in October 2020 headed: “Private prosecutions: safeguards”.

The report acknowledged that “it is a strength of the current system that it enables corporate victims of crime to pursue justice when public authorities decline to intervene”. It also acknowledged that there are a number of safeguards in place within the private prosecution system to ensure fairness whilst making a number of recommendations about how those safeguards could be improved.

One such safeguard is related to the costs of private prosecutions and the possible inequality that exists between the prosecution and defence in the context of costs recovery. The report made recommendations about the extent to which private prosecutors can recover costs with a view to ensuring that “the rise in private prosecutions does not result in the development of a parallel system where the public interest, accountability and transparency are secondary to private interests.”

The report prompted a recent government announcement that it intends to review what it described as “inequitable” funding arrangements between private prosecutors and defendants. It is therefore proposed to limit prosecutors’ costs recovered from a defendant with those costs to be capped at legal aid rates or the equivalent of what would have been sought by the CPS. Whilst such action may be a possible deterrent to bringing a private prosecution, it is likely to be some time before such a change is implemented.

If the intention is, with the implementation of these funding changes, to seek to limit the number of private prosecutions to be brought, then further funding needs to be provided to the investigatory bodies and prosecuting authorities in order to enable them to deal with a broader scope of offending than they are capable of doing at present and in a timely manner.

The decision to bring a private prosecution should not be taken lightly and the team picked to advise and assist needs to be experienced at doing so. To state the obvious, there is a lot at stake and recent cases have shown the potential adverse consequences.

A conviction for a serious offence can result in a prison sentence. Bringing a prosecution to seek such a conviction is down to the prosecutor and with that burden comes a number of responsibilities to ensure that the prosecution is undertaken diligently, fairly, and lawfully. Again, safeguards are in place to seek to ensure that is so, with others recommended.

For example, an interesting recent development designed to assist with providing some oversight on the conduct of private prosecutors is the publication of the voluntary ‘Code for Private Prosecutors’. This code, which mirrors that of the ‘Code for Crown Prosecutors’, seeks to bring consistency among prosecutors to their approach.

Further safeguards are now expected to be developed resulting from recent high profile cases and reviews such as the ones mentioned above.

Those recent high profile cases demonstrate the risks and pitfalls in bringing private prosecutions, particularly in the context of undertaking complex prosecutions involving difficult disclosure issues, but such issues are not unique to private prosecutions. Recently collapsed SFO prosecutions demonstrate the same hazards in bringing complex public prosecutions.    

What is clear is that private prosecutions are a crucial tool in a victim’s armoury. That tool is being used effectively and with increased regularity by insurers as a deterrent against fraudulent claimants and perceived recent deficiencies in the process need not be a barrier to an increase in the use of private prosecutions. Are they the future? They appear to be increasingly so.