Miscarriage of justice: Large organisations and private prosecutions

On 7th July, the Justice Committee of the Houses of Parliament heard evidence into the way in which large organisations conduct private prosecutions.

The Committee, a group of MPs mostly made up of former lawyers, heard an analysis of the Post Office Horizon prosecutions, which are currently subject to review by the Court of Appeal. The Committee is concerned over the potential for large organisations to abuse their powers leading to the miscarriage of justice.

Evidence was heard from the investigators who undertook a study of the flawed processes that the Post Office engaged, and from members of the Private Prosecutors’ Association, and academics.

Of particular note were discussions relating to: disclosure and how private prosecutors deal with this sometimes thorny issue; the full code test of the Code for Crown Prosecutors and the applicability of the public interest test to private prosecutions; legal privilege; the lack of resource in the public sector that renders private prosecutions an attractive option for those denied justice by the state, and the role of the defence in bringing proper challenges where applicable to such cases. It came to light that none of the Post Office Horizon cases had been referred to the Crown Prosecution Service (CPS) for review.

Whilst some of the academics highlighted a number of concerns about how and what might go wrong with private prosecutions, James Daly MP, said that in his experience of working in the Courts’ system, he had generally never experienced a problem with private prosecutions, and he thought those that he had seen had been well run. Others expressed similar views.

A number of potential solutions were discussed ranging from statutory overhaul, for example by putting the Code for Private Prosecutors into a statutory framework, to less invasive suggestions such as changing the summons process whereby it would be made clear to defendants that they have a right to challenge by referring their case to the CPS for review. The Committee heard evidence that it is likely to be impractical for the CPS to have a formal oversight function with all cases being referred to it.

My take from this is that the failings highlighted in the Post Office Horizon prosecutions were avoidable. Private prosecutors should expect to see either more statutory or judicial oversight in due course, but that oversight is unlikely to cause too much concern to those practitioners currently expert and experienced in the bringing of private prosecutions, because any proposals are likely to be based on best practice and the Code for Private Prosecutors.  It is unlikely the state will have the resources available to provide a full-time statutory oversight function for private prosecutions.

Therefore, those businesses and individuals who wish to consider bringing private prosecutions should remain confident of their right to do so, but they should choose lawyers and investigators who can demonstrate experience in this field, who work to best practice and adopt the Code for Private Prosecutors.

Jeremy Asher is an experienced regulatory lawyer who has brought more than 500 successful prosecutions in the past 10 years for large organisations, individual clients, central government and local authorities covering such as fraud, perverting the course of justice, money laundering and environmental cases, including more than 50 private prosecutions.

Contact us, we are here to help

If you would like to discuss any of the above, please do not hesitate to get in touch with our team, via the below details: