Private prosecutions
The case for reform — but when?
What is a private prosecution? Sir Theobald Mathew, director of public prosecutions from 1944 to 1964, was fond of saying that his title was a misnomer because he directed nobody and there were no public prosecutions.
The point he was making was that all prosecutions were private prosecutions, whether brought by the police or by anybody else. That’s why the Ministry of Justice had to come up with a definition of a private prosecutor in its consultation paper on reform last week.
The government’s definition covers any organisation that brings a criminal prosecution in England and Wales apart from:
the Crown Prosecution Service;
a police force;
the Serious Fraud Office; and
the National Crime Agency.
What sets these criminal justice agencies apart from other prosecutors is that they are subject to independent inspection and apply the code for crown prosecutors.
Curiously, the proposed definition of private prosecutor does not include a private individual who brings a prosecution. The government says:
We consider that the right of victims of crime to commence criminal proceedings provides an essential route to justice and do not seek to curtail the ability for an individual to bring a prosecution on their own behalf in any way. Individuals who bring a prosecution on their own behalf are therefore out of scope of the proposals in this consultation.
In my book The Case for the Crown, written nearly 40 years ago, I suggested it was anomalous for parliament to have imposed pretty stringent restrictions on police prosecutions when it created the Crown Prosecution Service in 1985 “while continuing to allow private prosecutors to do just what they like”. The government is now considering how far to limit that anomaly.
Single justice procedure
I wrote last August that the case for a government review of private prosecutions was growing greater by the day. That following a ruling in which the senior district judge decided that thousands of cases privately prosecuted by railway operating companies had been void from the outset. Each was therefore a nullity.
These prosecutions had been brought using the single justice procedure — a fast-track bulk process that is closed to public view, although lists of defendants are made available to reporters. The process allows — some would say encourages — defendants to plead guilty online and avoid having to attend court.
Unfortunately, the offences charged — non-payment of train fares — were not covered by the single justice procedure. The senior district judge thought that as many as 74,000 people had been wrongly convicted. It turned out to be not quite as many though the figure is still more than 60,000.
Last November, the then transport secretary asked the rail regulator to conduct an independent review of train operators’ revenue protection enforcement practices, including their use of prosecutions. The regulator’s report, expected in May, will be considered by the Ministry of Justice as well as the Department for Transport.
Around 63,000 convictions are recorded under the single justice procedure each month after defendants either plead guilty — by post or online — or fail to respond to a notice from the court.
Under the current arrangements, introduced in 2015, people have been convicted even though they had put forward mitigation demonstrating that prosecuting them was not in the public interest. There is currently no opportunity for prosecutors to review any mitigation prior to a single magistrate deciding the case.
How private prosecutions work
Anyone can launch a prosecution by applying to a magistrates’ court for a summons — although the process is certainly not risk-free.
Some organisations have statutory authority to bring prosecutions for certain offences, which means they don’t have to obtain a summons first.
The single justice procedure can be used by the police, the Crown Prosecution Service and some private prosecutors to prosecute for specified minor offences without a summons.
The government’s case for reform
“Many private prosecutors bring prosecutions which are in the public interest,” said the courts minister Sarah Sackman KC MP in her foreword to the consultation paper. But some had acted unlawfully and improperly.
She continued:
There have been cases where this has resulted in serious injustice. Perhaps the most egregious example is the Post Office scandal. These private prosecutions have — rightly — been described as one of the worst miscarriages of justice in our country’s legal history.
The Post Office no longer brings private prosecutions.
No common standards
As the government says, all prosecutors must comply with rules and directions. Legal professionals are bound by their regulatory requirements. But there are no common standards.
The code for crown prosecutors is binding on the Crown Prosecution Service and is followed by other criminal justice agencies. But the code for private prosecutors, devised by a members’ organisation set up in 2017, is purely voluntary.
The director of public prosecutions can take over a private prosecution and stop it. But that power is hardly ever used because the Crown Prosecution Service rarely gets to hear of private prosecutions that may be causing concern.
Ministers say the lack of consistency and accountability in the standards required of prosecutors undermines public confidence in the justice system and risks the criminal justice system being used to pursue unfair and wrongful convictions.
What the government wants to do
The Ministry of Justice is proposing:
a binding code of standards for private prosecutors;
a proportionate system of inspection for some private prosecutors;
an accreditation system; and
sanctions for those who fail to uphold the required standards.
Under proposed reforms to the single justice procedure, the government its considering whether prosecutors should have to review mitigating circumstances submitted by a defendant. In the meantime, the notice sent by the court to defendants is being redesigned to make it easier for them to understand their rights.
Transparency
The Ministry of Justice does not have complete data on private prosecutions. It believes the Post Office Horizon scandal might have come to light sooner if there had been greater transparency. It is seeking views on what information private prosecutors should be required to publish.
Responses
Responses to an online survey are invited by 8 May.
Comment
Stephen Wooler CB, formerly HM Chief Inspector of the Crown Prosecution Service, welcomed the consultation paper but said it was light on detail.
Wooler, a committee member at the Criminal Law Reform Now Network, said yesterday:
In proposing accreditation, a binding code and proportionate inspection (with sanctions), the government is building on proposals made by the Criminal Law Reform Now Network in its evidence to the Justice Select Committee and subsequent discussions with the Ministry of Justice.
We shall be submitting (and publishing) a response to this important consultation that will assist in fleshing out the detail necessary to create a regime which is balanced and fair — enabling such prosecutions to continue whilst offering safeguards against inappropriate use of the power to prosecute.
In the meantime, the law reform network has published its views on inspection and accreditation.
Though there are more safeguards than there once were, the anomaly of unregulated access to the criminal justice system remains hard to justify. But, nearly five years after the Commons justice committee recommended reform, legislation still seems to be a long way off.
Update 1030: a reader — who wishes to remain anonymous, like many of my best-informed readers — points out that the paragraph above referring to private individuals assumes that the prosecutor is the (alleged) victim. But the Prosecution of Offences Act 1985 does not confine the right of private prosecution to cases in which the prosecutor has a direct interest.
Update 11 May: another anonymous reader tells me the government’s definition of public prosecutor is bizarre:
“It puts statutory prosecutors such as the Health and Safety Executive into the definition of private prosecutor, even though the Health and Safety Executive employs prosecutors who apply the code for crown prosecutors and is currently subject to an inspection by HM Crown Prosecution Service Inspectorate.”
My reader suggests that “the inspectorate should be required to inspect all Whitehall prosecutors and that they be brought under the superintendence of the attorney general, leaving the genuinely private prosecutors to be the subject of a consultation on reform”.
I am much better informed of course by Joshua’s piece(s) than hitherto and by the so seasoned earlier contributors. Tempting though it may be to have the Single Justices in this context embarking upon public interest considerations, I am troubled by that tiptoeing into a prosecutor’s domain.
While Sir Theobold was correct at the time, things have obviously moved on. The right to bring a private prosecution has long been argued a constitutional safeguard. While that may be theoretically true (although the power of the DPP to take over any prosecution and the A-G the power to issue a nolle prosequi counts against that), there should be a difference between an individual and a company (notwithstanding the corporate rule about a company being a legal person).
Of course, it comes down to money. If the government said that companies could not prosecute and it would need to go via the CPS, then the already-stretched CPS would need a lot more money. Which the government would be reluctant to provide. A binding code will be OK so long it tackles the key areas of the CCP. Personally, I would say that companies need to follow the CCP and put greater scrutiny on an application for a summons from citizens.
On the SJP, this is always difficult, partly because the media (not including you, obviously) cannot differentiate between mitigation and the decision to prosecute. As you say, some of the mitigation calls into question whether a prosecution was in the public interest. However, there are lots of (normal) prosecutions where there is some doubt as to whether the public interest test is met. It has never, to the best of my knowledge, been the role of the courts to determine whether a prosecution is in the public interest (save on a judicial review as to whether the Code is met, which is certainly not one for lay justices!). Prosecutors do not have a role in mitigation, that is rightly a matter for the courts. However, the difficulty with most of the SJP offences is that judicial discretion over most sentences has gone. So, for example, speeding accounts for a considerable amount of the SJP procedure. But, if you look at the Sentencing Guideline there is no real discretion. The speed determines the band of fine, and the income of the offender determines the fine (although most don't say their means, so the 'deemed amount' is taken). Where does mitigation sit there? TV Licencing is the same. If you look at the guideline, it is a Band A or a Band B fine depending on the aggregation, with the vast majority being Band A. There isn't any real way to take account of mitigation in the way that you would with a sentence that is more vague such as ABH.
I can't see how getting prosecutors to look at mitigation would work. The numbers are vast, and it probably wouldn't be legally-qualified prosecutors who would look at it, it would be caseworkers. Guidelines would then be produced, and it would become as tick-box as anything else.
A radical solution would be to say that SJPs have four express options open to them:
(1) Convict
(2) Acquit
(3) Discharge the matter as not in the public interest
(4) Refuse prosecution costs where they think it is not in the public interest.
#3 takes the courts (particularly lay mags) into territory they have stepped. #4 is fine in one regard, but doesn't help the person who now has a formal criminal conviction.
Another argument is to abolish SJP. However, most of these offences do not realistically require three lay magistrates or a DJ to deal with them, so the underlying premise is not bad. While much attention is paid to delays in the Crown Court, the delays in the Mags is significant too. Pouring all of the SJP cases into the normal routine work of the Mags would really delay things.