Introduction
The Justice Select Committee had been requested by the CCRC to investigate the use and safety of Private Prosecutions in England. This is now one of their current inquiries. The background to this inquiry is the referral of a number of Subpostmasters.
On July 7th there was a public evidence gathering session. This session is still online at parliamentlive.tv. This committee will publish a transcript of the proceedings. They will also publish written “evidence” as submitted by interested parties. During the meeting this was mentioned often and it may be that is the most important part.
Although this inquiry was instigated as a response to the Sub Postmaster case, no mention should be made of cases under way, i.e. the individual referrals. The Civil case that was closed against the Post Office can be discussed.
This document only contains the author’s response and reactions to the session. Should you find anything relevant then refer to the parliamentlive link above for details.
The session was divided into three panels, broadly:
Second Sight, the “industry” and Academia.
Second Sight (2nd Sight) are a firm of Accountants and Investigators that were originally hired by the Post Office to investigate some of those accused of fraud. They were dismissed by the Post Office and later came to be on the Sub Postmasters’ side.
There were members of the Private Prosecutors Association who I will refer to as the “industry”.
The Academia group came mainly from the City University Law School with one person from the Cambridge University Faculty of Law.
Although mainly focussing on the Sub Postmaster cases, the session was about Private Prosecutions wherever they are used, e.g. Railway Companies, Animal Protection charities.
Summary
The evidence session was very good with several MPs from the Justice Committee represented and people from top law firms and Academia.
The main concern was whether Private Prosecutions are safe to use. The session started with an in depth presentation from Ron Warmington and Ian Henderson from Second Sight. Their main point was that the Investigation, by the Post Office, was not nearly good enough. From the cases that were resolved last year: Bates v Post Office [2019] EWHC 606 (QB), also Bates v Post Office [2019] EWHC 3408 (QB). It has been been established that a fault in the Horizon system was a possible cause.
Some Private Prosecutors would offer a Plea Bargain of accounting fraud as a preference to a charge of theft. From the Academia participants it is believed this is a common practice across the industry. This had an effect on defendants of them not putting their best case forward. Prosecutors can only proceed with the evidence they have before them.
Notes
What is a Private Prosecution?
They are nominally a means for those who believe they are victims of crime to commence a Prosecution, in the Courts, to seek redress that they feel they are not getting from the Crown Prosecution Service (the CPS). The CPS may believe there is not a case to answer but a private prosecution may proceed regardless. There is now a small industry in Britain of Law firms who will help you bring a private prosecution. There is even a Private Prosecution Association to represent firms who do this type of work.
How Private?
I did learn a few things about Private Prosecutions. They are not as private as it may seem! Prosecutors are able to turn to Central Funds to offset the cost of the prosecution. One of the reasons the Industry has put forward to justify them is that it saves the CPS money. I find this a little bit disingenuous as the CPS and Government should look after their own finances. I have heard forms of this argument before. It turns out a Private Prosecution could actually cost the tax payer more than a Public Prosecution.
How Many?
One of the biggest problems in tracking prosecutions, for Academics, is that there is no central database. A few years back a question was asked in the House and they were able to come up with some sort of number. A suggestion from the City University team was that such a database should be created – Claire de Than even had a sample form all worked out to do the job.
Why are there Private Prosecutions?
They exist to help those who believe they have not received justice from the CPS. In a form of “getting your revenge in first” litigants are not required to inform the CPS before commencing proceedings. The CPS may notice the prosecution is under way. In the author’s opinion this has already invalidated the primary reason for bringing a case. Even though the justification is framed in terms of individual redress, most cases are brought by large organisations (like the Post Office, Rail companies, charities…). A Private Prosecution is viewed as a cheaper alternative to a Civil Action (Civil Debt Recovery).
Where are Prosecutions Started?
Ron Warmington suggested he had been involved in over 1000 Fraud investigations, all over the world, England seemed to be the only place they were used. Some States in the US did not allow them and so the practice was never used. Civil Debt Recovery was the usual method.
What are the concerns using Private Prosecutions?
Second Sight maintained that all private investigators and prosecutors had a professional duty to ensure justice in each and every case. They should make sure that every line of inquiry was followed and they should follow the “Full Code Test”.
The Full Code Test: Sufficient Evidence to give a realistic prospect of conviction. Is it in the “public interest”.
The CPIA provide a pre-trial enforcement guide.
The Private Prosecutors are not obliged to follow this guide- from the Criminal Procedure and Investigations act. The Private Prosecutions Association has developed a Code which is similar to this, their members agree to abide by it. Police are trained to abide by the CPIA Full Code Test but Private Investigators are not.
The Academics believe that, on a large scale, this is not happening. Large Private Prosecutors are abusing their powers (or even pretending they have some).
What can be done to minimise the effect on Innocent Defendants?
It is believed that Private Prosecutors should work much more closely with Public Prosecutors. This would ensure that nothing is commenced that does not meet the Full Code Test.
Surprisingly a lot of measures already exist! No change in the Law is required to implement them. When a Private Prosecution is commenced there is no need to contact the CPS, however the CPS can learn about them and take them over. Doing so would ensure the Full Code Test is applied. The CPS has a right to do this and they use it.
What I didn’t know was that a defendant can refer the case to the CPS! Private Prosecutors do not always like the scrutiny that comes with it. For one of Second Sight’s customers an independent examination of 5 cases was performed. That customer did not proceed with those prosecutions, further that they abandoned the practice shortly after that.
Something else I didn’t know was that Police can examine a case! A policeman can investigate and sometimes resolve it. They might issue a Caution or even discontinue that case. Once they have done this the Private Prosecutor cannot continue.
Perhaps this is why Private Prosecutors do not like scrutiny, they may have invested in a potential prosecution only to find they have to abandon it.
It is not known how many of the sub postmasters involved the CPS, it is believed that none did.
It is also not known how many defendants of all the Private Prosecutors manage to get their case referred to the CPS. It was believed that the Right to involve them is not well known. Part of the Remedies being considered is that there should be much more information available to defendants as the case is commenced. This should be given to them at the point the Magistrate starts the process.
James Daly
James is an MP and is on the Justice Select Committee. He was also a Lawyer and did have some experience of Private Prosecutions. Second Sight had mentioned that there was use of “plea bargains” to extract a guilty plea, they used the term “bullying”. James asked how this happened, Ian replied that this is from statements made by the sub postmasters. From listening to the witnesses I formed the opinion that Second Sight are Accountants and Investigators, that they are not Lawyers (Solicitors or Barristers). Perhaps the Select Committee are owed a more lawyerly response to this question.
Maria Eagle
Asked whether people subject to allegations were made aware that they were subject to a Private Prosecution. It is not clear whether people did know that this was the case. In an attempt to intimidate people they do not always disclose this and even claim Investigation Powers that only the police would have.
Maria also worried about there being a conflict between being a victim and the prosecutor.
I think what she meant was that we should abolish private prosecutions (imho).
Dr. Jonathon Rogers
Dr. Jonathon Rogers, part of the Academia Panel. He is also part of the Criminal Law Reform Network. That Network has two very relevant projects: The Computer Misuse act 1990 and The system of Private Prosecutions. A relevant reports.
The Private Prosecution report is relevant to the sub-postmasters case.
Claire De Than and Jesse Elvin
From the City University, they seemed to have done a lot of work investigating Private Prosecutions. They have prepared proposals as to how the justice system might deal with people caught up in this situation. They had made written submissions to the committee. At the time of writing these have not been published. However this material has been published in other works, e.g. the Criminal Law Review.
Claire mentioned that there is sometimes a discussion about accepting a lower offence plea. After collecting lots of data on this matter it is apparent that Private Prosecutors do not always abide by the rules. It was mentioned that there are guidelines from the Attorney General’s Office: Plea Discussions in serious.
The “Industry”
There are now a number of Firms who have a specialty of dealing with Private Prosecutions. They will prosecute or defend depending on the clients needs. Represented at this evidence session by Alison Levitt QC, a Barrister at 2 Hare Court and Gareth Minty, Barrister, Mishcon de Reya. Sandip Patel QC, Alliant Law.
I found it a bit disappointing that Private Prosecutions have created a community of specialists, particularly given Ron Warmington’s that they aren’t really used anywhere else. It probably does mean that, my favourite option, of abolishing them will meet some level of resistance. They reminded everyone that Private Prosecutions were intended to help victims of crime who have been let down by the Police or CPS to start their own prosecution. However they have been taken over by large public organisations that have never contacted the Police let alone been disappointed by their lack of action.
A good overview of 2 Hare Court services related to Private Prosecution is available here.
Alison did make a good case for using them in specialist areas, e.g. Copyright.
Finally
Listening in on the Select Committee was a very interesting exercise. I look forward to reviewing the Submissions and to see the final report. This committee is taking evidence until 23rd July 2020.