Best practice for organisations using private prosecution powers

The House of Commons Justice Committee has made a series of recommendations in its report published today which are likely to have a significant impact on the future of private prosecutions in England and Wales. 

The Justice Committee convened to undertake an inquiry to examine the effectiveness of the safeguards in place to regulate private prosecutions in England and Wales. The inquiry was triggered by the recent scandal  involving the Post Office workers’ convictions. Accordingly, the Justice Committee focused on those prosecutions where an organisation is allowed to act as a prosecutor when it is also the victim and the investigator of an alleged offence.

Kingsley Napley LLP was one of the 42 specialists in the field of private prosecutions who made representations to the Justice Committee on this important issue.  In our representation we welcomed the Justice Committee’s inquiry and recognised the significant concerns that follow the judgments the Post Office workers’ cases, however we maintained that the safeguards currently in place are sufficient to protect putative defendants from an abusive prosecution. On the key issue to be considered we took the view that is no difference in the safeguards that apply to a private prosecution conducted by an individual and those conducted by commercial organisations.  If an organisation has been the victim of crime, there is no reason in principle why an investigation and prosecution should not follow.

Kingsley Napley has vast experience of working with organisations that prosecute as a measure of last resort when compliance with the law cannot be achieve through any other means. In working with these bodies we have learnt that there are some key steps which can be taken to prevent against a misuse of prosecution powers.

1. An oversight group or committee should be established to promote accountability through independent monitoring that prosecutions are at all times proportionate and appropriate; 
2. Separation between the persons tasked with conducting investigations and those making decisions on prosecution is advisable; as well as clear delineation between any enforcement team and the rest of the business. An independent chain of responsibility for complaint handling is also prudent;
3. A clear enforcement policy should be publically available which sets out what factors will weigh in favour of a prosecution and, in particular, considered in the public interest;
4. Proper record keeping is important when deciding to commence a prosecution, namely can the sufficient evidence and public interest tests be met according to the Full Code set out in the CPS Code of Conduct;
5. Establishing open channels of communication with state-run prosecution agencies is recommended and having memoranda in place with these agencies which define what offences will be reserved to them;
6. Consideration should be given to whether the organisation can sign up to the principles set out in the Private Prosecutors Association Code of Conduct .

The Chair of the Justice Committee, Sir Robert Neill, said: 

The power to prosecute individuals, and potentially deprive them of their liberty, is an onerous power which must be treated with the utmost seriousness.

We’ve received evidence that the number of private prosecutions is increasing sharply. The overwhelming majority of private prosecutors uphold high standards. But the Post Office cases show the potential danger of the power to prosecute being misused. If the number of such cases continues to grow the government will need to ensure that there are systems in place which make such private prosecutions comply with the highest possible standards.

All prosecutions must be pursued with the public interest at heart, either by the State or, if privately, with the same standards used by the State - in all cases with appropriate accountability, transparency and safeguards.

Applying the recommendations made by my Committee would help achieve this goal”.[1]