Private criminal prosecutions in the headlines | Bambos Tsiattalou

Partner Bambos Tsiattalou discusses private prosecutions, offering insight to their shortcomings and benefits, in Lawyer Monthly.

Bambos’ article was published in Lawyer Monthly, 22 July 2020, and can be found here.

Private criminal prosecutions have recently hit the headlines, with news that Boots successfully brought a private prosecution against a prolific shoplifter after the police had refused to take action. In 2019, a fraudster received an eight-year custodial sentence after a private prosecution was brought by an engineering company. Even Dominic Cummings is the subject of a private prosecution for his notorious breach of lockdown in March, during the height of the coronavirus pandemic.

For wealthy individuals and companies who believe that they have been victims of fraud, private prosecutions may seem like an attractive option and there is a burgeoning market of “specialist” firms willing to provide a “tailor made” prosecution service, receiving large hourly rates for doing so. Many “victim clients” see private prosecutions as a means of retaining greater control over the timing and execution of prosecutions, or as a cheaper and quicker alternative to civil litigation. Sadly, most view them as an additional tool to settle scores, to damage reputations, or to force a settlement of civil proceedings. Although bringing a private prosecution with improper motives is undoubtedly unethical and a misuse of the criminal court process, malice is notoriously difficult to prove and even if established, is not an automatic bar to a prosecution.

In reality, of course, the mere commencement of a criminal prosecution can seriously damage people’s lives, whatever the eventual outcome. Careful and responsible thought should be given before embarking on such a course. Whilst the Crown Prosecution Service must be satisfied that clear evidential and public interest tests are met before bringing any public prosecution, it is a regrettable fact that private prosecutors are not legally required to apply the same high standards and this is, perhaps, what makes it so attractive to some who wish to use the system to settle scores.

A number of right-minded interested professionals have created a body; the Private Prosecutors Association (“PPA”), which has published a voluntary “Code for Private Prosecutors” in a bid to ensure that the professional and ethical duties of private prosecutors are well-understood.

The public interest is not well served by permitting the use of overburdened criminal courts as a new playground for the lavishly funded to resolve private disputes and a proper and enforceable Code is undoubtedly a desirable first step to ensure private prosecutors understand their basic duties, foremost as Ministers of Justice with an overriding duty to the Court, and not as private client litigators acting upon the instructions of an aggrieved “victim”.

The voluntary Code is, however, just that and it may be of concern that it does not appear to have been met with universal enthusiasm, especially amongst some of the “specialist” firms. It places them in a conflicted situation of advising their clients of the strength of their case and bringing in fees.

Where the Director of Public Prosecutions learns of a private prosecution, he has the power, via the CPS, to review, take over and discontinue the prosecution at any stage: either where it is in the public interest to do so, or where the case would not meet the basic evidential standard that would be required for a public prosecution to be brought. While that is an invaluable safeguard for a defendant, it is surely wrong in principle that prosecutions which are evidentially weak and would be “weeded out” pre-charge by the CPS should be allowed, nevertheless, to enter the criminal justice system by the private backdoor, leaving defendants to fall back on an appeal to the CPS to intervene and do the right thing. Let’s not forget that the public purse is taking the burden for this.

Whatever may be said of the public prosecution service, the CPS does not have a direct financial interest in the cases it prosecutes in the same way the private prosecution firms do, and they do not have the same “client” relationship where an aggrieved but paying “victim” gives instructions to be acted upon.

Private prosecutors will often cite high statements of principle that suggest private prosecutions occupy an important role in our constitution. There will be occasions, inevitably, where genuine cases have slipped through the public prosecution’s net and where a private prosecution should remain a last resort, but often the private prosecutor will seek privately to prosecute as a first resort and will not have even reported the case to the police or CPS for their consideration.

Proponents of private prosecutions often argue that they save the taxpayer the costs of investigating and prosecuting crimes. Yet prosecutors often apply for and receive their costs from public funds; even if the case is one the CPS would never have brought, the defendants are acquitted and even if the case collapses pre-trial. It may be considered wrong that taxpayers should find themselves paying the bill for a prosecution which would never have been brought by the state in the first place and was brought by an individual with enough money to pay themselves.

“No win, no fee” arrangements are not permitted in criminal cases in the UK, to avoid such conflicts of interest, yet such arrangements are openly advertised online when it comes to private prosecutions. Defending against a private prosecution brought without proper disclosure being given is dangerous.