April Skies

Imminently, the Court of Appeal is expected to rule upon the appeals against conviction by a number of former Post Office workers, arising from the Horizon scandal. The Gazette picked up the story here: https://www.lawgazette.co.uk/news/ex-post-office-workers-reach-court-of-appeal-/5107886.article

There are now apparently fifty one such cases, although they may yet be other appeals to be brought. One of the consequences of the scandal, is that it has shone a spotlight on the role played by private prosecutions in this country.

The role of such prosecutions has been considered in a report from the parliamentary Justice Select Committee, which makes for very interesting reading and can be read in full here: https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/497/49702.htm

The backdrop to the Committee’s report was that on 3rd June 2020 the Criminal Cases Review Commission (CCRC) announced that it had referred eight further Post Office workers’ convictions for appeal.  On the same day, the Chair of the CCRC, Helen Pitcher, wrote to the Chair of the Justice Committee to ask if the Committee would undertake a formal review of the circumstances and safeguards where an organisation is allowed to act as a prosecutor when it is also the victim and the investigator of an alleged offence, as the Post Office was in these cases.

The Justice Committee undertook an inquiry to examine the effectiveness of the safeguards in place to regulate private prosecutions in England and Wales. The Committee received evidence from a number of interested parties, including lawyers that specialise in private prosecutions, investigators, legal experts, the Crown Prosecution Service and the Criminal Cases Review Commission. What may be of particular interest to readers of this blog however, are what the report says about the role of costs in private prosecutions.

Although instinctively, the uninformed reader may feel that prosecution in the criminal courts is a matter best left to state agencies, private prosecutions have a respectable constitutional role, and there can be an important public interest in their furtherance, when the state is unwilling to deploy sufficient resources to prosecute particular crimes.

As the report notes:

24.In 2014, the then Lord Chief Justice, Lord Thomas of Cwmgiedd, noted in R (Virgin Media) v Zinga that “there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions”.

25.The evidence of the Private Prosecutor’s Association (PPA), which was established in 2017, also highlights an increase in the number of private prosecutions: The PPA was established at a time when the number of private prosecutions had been growing rapidly. It is our view (and that of others in the criminal justice system) that, in part, this growth reflects an inability of state bodies, as currently resourced, to meet demand. Many crimes which could be prosecuted are not. This, in many cases, leaves victims looking for alternative remedies, of which private prosecutions are one.

26.TM Eye’s evidence to the Committee states that since 2014 it has brought over 500 criminal prosecutions as a private prosecutor with a 100% conviction rate and that 13% of those convicted receive custodial sentences. TM Eye explains that its prosecutorial practice began “as a direct result of the Government austerity measures and reduction in law enforcement capabilities” and that it has diversified in recent years to include general offences. Edmonds Marshall McMahon claim that “access to justice via the police for certain crimes is now the (rare) exception rather than the rule, particularly in relation to fraud”.

As the Committee further noted with emphasis:

28.It is a strength of the current system that it enables corporate victims of crime to pursue justice when public authorities decline to intervene. The lack of a prosecution can represent injustice just as much as a prosecution wrongly brought. However, in a modern criminal justice system whether an offence is prosecuted or not should not depend on whether the victim has the financial resources to conduct a prosecution.

However what emerged to qualify this view that private prosecutions are a “good thing”, were the costs implications and consequences that can flow from the bringing of a private prosecution:

29.The cost of private prosecutions is controversial. Some private prosecutors claim that given the gap left by the limited resources of public bodies, private prosecutions provide the public benefit of “allowing law enforcement and state prosecution bodies to focus on other areas of crime, freeing up vital and stretched resources to focus on other priority crimes”. Other submissions to the Committee suggest that a favourable costs regime is driving organisations to use private prosecutions instead of the civil courts, which is in turn resulting in unnecessary expense to the taxpayer.

In part this is because of the costs consequences for the state, even where the party running the prosecution is not part of the state:

30.Lord Thomas, the then Lord Chief Justice, highlighted in the 2014 case of Zinga that in practice private prosecutions are likely to cost the state more than an equivalent CPS prosecution: The costs of a private prosecution, whether successful or unsuccessful, are recoverable from the taxpayer; the use of private prosecutors will almost inevitably cost the State much more than the use of a State prosecutor, such as the CPS. A private prosecutor can recover costs at rates that are not confined by prescribed amounts, which means that “private prosecutions are publicly funded at a higher cost than if the prosecution had been conducted by the CPS. The CPS claim that its prosecutions provide the “most cost-effective use of the public purse, and therefore the growth in private prosecutions should be discouraged”.

Matters take a further turn, when one considers the so called “Justice Tax”, which means in the criminal courts there is not a level playing field, in terms of the ability of a prosecutor to recover his costs set against the far more limited scope for a defendant, who walks free from court without a stain on his character, to recover his own costs. 

31.Jamas Hodivala QC, a barrister at Matrix Chambers, points out that there is inequality between the position of a prosecutor, who can recover costs if a prosecution is successful or unsuccessful (as provided for by section 17(1) of the Prosecution of Offences Act 1985), and the position of a defendant, which save for two limited exceptions is unable to recover any of its legal costs if it is acquitted of criminal charges. Hodivala reports that, from personal discussions he has had with private prosecutors, “the low costs risk is viewed as an economic incentive to bring a private prosecution”. The CPS’s submission also suggests that the “lack of financial consequences” for an unsuccessful private prosecutor may increase the likelihood that the system will be misused.

32.Aliant Law’s evidence to the Committee stresses that a company that chooses to bring a private prosecution instead of a civil claim “avoids having to make payment of any court fees”. More broadly, Aliant law submit that the low risk costs regime gives rise to an financial incentive that “can act as a real distortion on the motives and actions of a private prosecutor”.

33.The Criminal Law Reform Now Network’s evidence draws attention to the fact that convicted defendants in private prosecutions are sometimes asked to pay more than if they were prosecuted by the CPS:

Whereas the CPS only asks for a relatively modest fixed sum in all cases, there is nothing to stop private prosecutors, who will engage their own legal teams and possibly more expensive counsel than would the CPS, from seeking considerably more from convicted defendants, and we gather that this is quite common.

We agree with the CLRNN that this situation creates a risk that the higher costs could “be as coercive towards defendants who anticipate being convicted (whether guilty or not) as the threat of higher sentences if a trial is contested”

This is an intriguing insight into what may inform a “counter fraud” strategy, for organisations such as insurance companies, who may wish to utilise private prosecutions and cannot be blind to the potential costs benefits of doing so:

35.The latest figures show that many private prosecutions cost the taxpayer more than CPS prosecutions. That may in part be explained by the complexity of the cases undertaken privately. Nevertheless, the public is unlikely to accept that the state can afford to pay for the prosecution of financial crimes against large organisations but is not prepared to ensure that the police and the CPS have enough resources to prosecute similar offences committed against ordinary citizens.

36.A rise in the number of private prosecutions risks the “prospect of a two-tier justice system”.The gap in the enforcement of fraud means that at present, wealthy organisations can seek justice via a private prosecution, but elderly and vulnerable victims of fraud cannot. Private prosecutions should be available to all. Otherwise, the legal right to bring private prosecutions will serve to exacerbate existing inequalities rather than to act as a safeguard against state inaction and a viable alternative for seeking access to justice.

The Committee’s views are interesting: one queries to what extent the government will be prepared to take them on board. There is very little indication that criminal justice, in the sense of putting more money into the system or removing an iniquity about criminal costs, is a governmental priority.

37.The Committee agrees with the CPS that the Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds. We acknowledge the proposal made by the Centre for Women’s Justice that private prosecutors’ recoverable costs should be capped at legal aid rates. We think there should be no disparity between the claims that can be made from central funds by prosecutors and defendants. We also support the proposal made by the CLRNN that defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS.

In conclusion the Committee found:

2.It is a strength of the current system that it enables corporate victims of crime to pursue justice when public authorities decline to intervene. The lack of a prosecution can represent injustice just as much as a prosecution wrongly brought. However, in a modern criminal justice system whether an offence is prosecuted or not should not depend on whether the victim has the financial resources to conduct a prosecution. (Paragraph 28)

3.The Committee agrees with the CPS that the Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds. We acknowledge the proposal made by the Centre for Women’s Justice that private prosecutors’ recoverable costs should be capped at legal aid rates. We think there should be no disparity between the claims that can be made from central funds by prosecutors and defendants. We also support the proposal made by the CLRNN that defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS. (Paragraph 37)

The Justice Tax, remains one of the more enduring stains upon the fabric of justice in this country. But there is no sign that things will change anytime soon. The anomaly of the different costs consequences arising from whether a case is brought by a state prosecutor or a private prosecutor and  the position of successful defendants simply illustrates the unsatisfactory (and indefensible) nature of the rules relating to criminal costs in this jurisdiction.

However, the anomalies also illustrate there is currently a space for solicitors (and counsel) to act as private prosecutors under an umbrella of favourable costs rules, on behalf of victims,  particularly in those economic sectors blighted by fraud, where economic crimes are simply not pursued by state agencies. 

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