Should a prosecution ever be private?

Anna McKay argues that private prosecutions are outdated and should be abolished.

Private prosecutions have come under increased scrutiny since the Post Office scandal. Between 1999 and 2015, the Post Office privately prosecuted more than 700 sub-postmasters based on faulty evidence from its flawed Horizon IT system. As a result, reforms to the private prosecution regime have been proposed. Many who defend private prosecutions suggest that the right to bring one is too precious to alter, and that the Post Office scandal is an anomaly. This blog calls for their abolition. The benefits of private prosecutions are dubious, and the reforms required to make them safe would undermine their very character as ‘private’ enterprises.

Where the Crown Prosecution Service (CPS) declines to bring a prosecution, complainants may, in theory, pursue the matter independently. Hence, private prosecutions may enhance access to justice for victims and are arguably a deeply engrained constitutional right. Lady Hale in Gujra, R (on the application of) v Crown Prosecution Service [2012] UKSC 52 suggested that removing them may violate victims’ rights under Article 8 and/or 3 of the European Convention on Human Rights (ECHR).

Yet this access is illusory for most victims. Bringing a private prosecution is prohibitively expensive for most. This ‘right’ also encroaches on the rights of defendants. Both points will be expounded on later. There are, moreover, alternative routes for victims if the CPS refuses to proceed.

The Victims Right to Review (VRR) and judicial review are both viable options to challenge a CPS decision not to prosecute. There are limitations to both, and some have recommended extending the scope of the VRR. Moreover, the VRR may be improved by ensuring applications are reviewed independently. Nevertheless, statistics show that victims do engage the scheme, and it can be successful.

Judicial review is not a perfect form of redress either. There are onerous requirements to bringing a judicial review claim, meaning professional legal advice is normally required. However, judicial review involves greater victim participation than VRR. A quashing order, which would force the DPP to reconsider, is possible (Manning, R (On The Application Of) v Director Of Public Prosecutions [2000] EWHC Admin 342). Moreover, the sheer existence of judicial review may put pressure on the CPS not to make flawed decisions in the first place.

Additionally, victims may be able to bring civil proceedings. Whilst these are not a substitute for a prosecution, liability is easier to establish and they may provide some sort of legal redress where there is an overlap in criminal and civil liability (for example harassment, sexual offences, assaults, criminal damage and fraud).

If the CPS declines to prosecute, victims are not without recourse.

However, private prosecutors (for example, those working for the charities) often bring specialist knowledge and expertise, which can give them an advantage over the CPS. Nonetheless, while such expertise may be valuable, this can be channelled into a supportive role within a public prosecution. The point may be reversible – the CPS should (in theory at least) have a stronger command of criminal law and procedure. The purported advantages of private prosecutions are tenuous, and their limitations are pronounced.

The most immediate limitation is cost. Bringing a private prosecution is beyond the means of most individuals, meaning the right is exercised almost exclusively by corporations and well-resourced bodies. Yet private prosecutors may recover reasonably incurred expenses from central funds, even if unsuccessful. Unlike acquitted defendants, whose costs are capped at legal aid rates (Section 16 of the Prosecution of Offences Act 1985), private prosecutors may recover their costs in full (section 17 Prosecution of Offences Act 1985). This creates a significant financial burden on the public purse. The irony in Fuseon Ltd v Senior Courts Costs Office [2020] EWHC 126 (Admin) is striking – the police declined to prosecute for lack of resources, yet the subsequent private prosecution cost the public three times as much. There is no defensible rationale for capping defence costs while leaving prosecution costs uncapped. This financial asymmetry undermines the principle of “equality of arms” and may infringe the right to a fair trial enshrined in Article 6 of the ECHR.

The unfairness does not end there. The Post Office was able to prosecute individuals using false information because there is no objective evidential standard governing private prosecutions. Private prosecutors are not obliged to apply the CPS’s Full Code Test (Charlson, R (on the application of) v Guildford Magistrates’ Court & Ors [2006] EWHC 2318 (Admin)), creating a real risk that evidence will not be objectively assessed. The Court of Appeal in Hamilton & Ors v Post Office Ltd [2021] EWCA Crim 577 found that the Post Office “deliberately chose not to comply with its obligations in circumstances in which its prosecution… depended on the reliability of Horizon data.” As a result, defendants face the prospect of cases being brought without any sound evidential basis.

Private prosecutors may also bring cases which are contrary to the public interest. In Morjaria v Westminster Magistrates Court [2024] EWHC 178 (Admin) the purpose of the prosecution was to gain leverage in civil proceedings. This was found to be an abuse of process, but it was only stayed because the prosecutor made the mistake of leaving an obvious breadcrumb trail. Similarly, private prosecutors acting on behalf of railway companies have been accused of bringing or threatening to bring private prosecutions for profit. There is also nothing to prevent private prosecutors from prosecuting antiquated offences or unrealistic charges, since the public interest is not a barrier.

There are some ‘safeguards’. One filtering mechanism is the ability to challenge the issue of a summons. However, this is far from robust. Magistrates, when issuing a summons or warrant, are not required to apply the Full Code Test, nor are they obliged to give the defendant an opportunity to make representations. The process is largely administrative, and the summons is usually granted. In Morjaria, the district judge did stay a prosecution, but such interventions are the exception, not the rule.

The DPP has the power to discontinue a private prosecution (section 6(2) of the Prosecution of Offences Act 1985), but they rarely come to his attention. There is no duty on the part of the private prosecutor to notify the CPS. The DPP may receive a request from the defendant, but defendants may not be aware of this option. None of the sub-postmasters affected by the Post Office scandal requested an intervention by the DPP. This is not a sufficient safeguard as it does not prevent illegitimate prosecutions; the DPP will intervene once the damage has been substantially done.

Finally, private prosecutions are not compatible with our contemporary model of criminal justice. Crimes are not wrongs between individuals, as in civil matters. Instead, crimes are between individuals and the State, or society at large. The state punishes individuals through the principle of retributive justice for breaching social codes; they are not simply seeking to right an individual wrong.

The Commons Justice Select Committee has recommended several reforms. These include a mandatory notification of private prosecutions to the CPS, creating a register of private prosecutors, and prolific prosecutors being subject to inspections. They suggest capping private costs at legal aid rates, as is the case with acquitted defendants. They also recommend that defendants who are privately prosecuted should be informed of their right to seek a review from the CPS.

Most reforms would subject private prosecutions to greater public oversight, so why not give the CPS full authority? Otherwise, we are doubling up on resources to maintain a ‘right’ which is already not cost-effective. Moreover, the solution to a lack of resources is not necessarily to outsource. Additional public prosecutors could be recruited and/or VRR and/or could be expanded. This could be achieved by redirecting the funds currently expended on spurious or pernicious prosecutions into strengthening public resources.

The Post Office scandal is not a historical anomaly but a warning of what happens when private interests are allowed to subvert the criminal justice system. The best of both worlds leads to the worst of all possible outcomes. The principled choice is abolition.