The rise of private prosecutions for insurers
On 18 July 2019 the Private Prosecutors’ Association (the PPA) the UK’s only association for professionals with expertise in the bringing of private prosecutions, published the first Code for Private Prosecutors (the Code). The Code aims to provide practitioners with a benchmark for best practice in the conduct of private prosecutions. Adherence to the Code by private prosecutors and those who act on their behalf is voluntary, but members of the PPA will agree to abide by it as a condition of membership. The PPA expects that the Code will help to drive up standards in the conduct of private prosecutions in England and Wales.
The Crown Prosecution Service (CPS) publish the Code for Crown Prosecutors. This is a valuable resource for anyone bringing criminal proceedings. However, the PPA has recognised that private prosecutions give rise to challenges that are not encountered in public prosecutions, and it is hoped that the Code will in some way help to plug that gap.
When a victim reports a crime to the state enforcement agencies then, save for acting as a prosecution witness, they will generally have very little involvement with the way in which the proceedings are conducted. By contrast when a victim engages a lawyer to commence a private prosecution on their behalf they will usually have a much greater involvement in the proceedings. Accordingly, a private prosecutor must be fully informed from the outset of the special responsibilities that rest with that role. These include: making sure they understand that the advocates and solicitors who have the conduct of private prosecutions must observe the highest standards of integrity and regard for the public interest, and that they owe a duty to the Court over that which they owe to their client to ensure the proceedings are fair and the case is dealt with justly, as well as informing the client the circumstances in which they may recover costs, or conversely costs may be ordered against them. A comprehensive list of the topics that professionals working in this area should consider informing their clients about is helpfully provided in the ‘client engagement’ section of the Code.
Another important area that the Code addresses is the private prosecutor’s duties of criminal disclosure. Proper disclosure is fundamental to ensuring fairness in criminal proceedings and failure to ensure disclosure obligations are discharged may have serious consequences. The Code sets out the conduct that the PPA considers to be best practice, and specifically addresses the challenge unique to private prosecutions of dealing with material that may attract legal professional privilege whilst at the same time meeting the test for disclosure.
The Code touches on the various challenges to the continuation of the proceedings that a private prosecutor may face. One of which is the possibility that the Head of the CPS, the Director of Private Prosecutions will take over a private prosecution and stop it. The Code provides useful guidance, to supplement that which is already available from the CPS, on what that process involves and what engagement the private prosecutor should expect to have with the CPS.
Private prosecutions are undoubtedly on the increase due to police budget cuts and pressures on the public system. The rise of private prosecutions has been met with concerns about the growth of a two-tier justice system, with suggestions that private prosecutions are only available to those who can afford to bring them. Whilst it is true that private prosecutions give rise to costs that do not arise in public prosecutions, the reality is, that because of the pressures on the public system private prosecutions are often, and increasingly so, the only route open to victims to secure justice. In that context the PPA has recognised that the Code will help ensure that practitioners who operate in this area maintain the same high standards of conduct expected of a public prosecutor as well as providing a useful benchmark for defendants and judges to assess the appropriateness of their conduct. In the long term the PPA expects this will help to ensure that private prosecutions, alongside the public justice system, continue to play a useful and important role in our criminal justice system.
Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty. Conducted badly they can be an expensive mistake with far reaching consequences.
In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions. In this blog we look at whether the private prosecutor is entitled to recover their full investigation and legal fees at the end of the case.
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.
A victim has a right to request review of a decision not to prosecute or to discontinue a prosecution, but do they have a right to make representations?
The Charities Commission has recently warned that fraudsters are exploiting the spread of coronavirus (COVID-19) in order to carry out fraud and cybercrime against charities. Unfortunately, in our experience, the likelihood of the police taking action against these individuals is low. In the current climate it is easy to understand why the use of private prosecutions is firmly on the rise. In the past, some charities have been criticised for having an overzealous approach to the conduct of their private prosecutions. In this blog, we highlight the importance of taking a few simple steps to ensure that charities who conduct private prosecutions are beyond reproach.
A private prosecutor and the lawyers who act on their behalf must meet the same high standards of conduct expected of a public prosecutor. The High Court has recently handed down judgement in a case where the issue of the objectivity of the private prosecutor was subject to scrutiny. The case is a salutary reminder to the putative private prosecutor of the benefits of taking independent legal advice on the merits of their case before commencing proceedings.
On 18 July 2019 the Private Prosecutors’ Association (the PPA) the UK’s only association for professionals with expertise in the bringing of private prosecutions, published the first Code for Private Prosecutors (the Code).
We have previously written on the matter of likelihood of cost recovery in respect of private prosecutions, but return to this topic in light of the recent decision Re Somaia v Lord Chancellor  EWHC 1227 (QB).
Rarely can the saying that a week is a long time in politics have been more true than in the case of Boris Johnson. The telescoped timetable for the election of the next Conservative leader, which was announced last week, clearly favoured him, given the large lead he has over his closest rivals. But the decision of District Judge Margot Colman has turned that advantage on its head. For there is no realistic chance that the prosecution against Johnson can be despatched before Conservative MPs decide on the two candidates to go before the membership.
On the 26th of October 2018 the High Court consisting of Gross LJ and Sweeney LJ granted an order for costs against the private prosecutor in R (on the application of Kay and Scan-Thors (UK) Limited) v Leeds Magistrates’ Court  EWHC 1233 (Admin) to the sum of £250,000.
We often act for businesses who have been the victims of crime. The Code of Practice for Victims of Crime (‘the Victims’ Code’) allows an opportunity for the voice of the business to be heard by way of an Impact Statement for Business (ISB).
On 3 April 2019 Bradford Crown Court has given a 21 months suspended jail sentence and six-months curfew order to Farida Ashraf, who pleaded guilty to fraud in a slip and trip case.
The #Metoo movement, which started just over a year ago, has brought to the surface the prevalence of sexual abuse. Led by the entrainment industry, and fuelled by social media, the movement has empowered individuals around the world to speak out against sexual assault and harassment.
A case summary of R (AC) v DPP  EWCA Civ 2092
Last month, Barrister Mark Smith was found guilty of professional misconduct and suspended from practice for one month for failing to advise his client about the risks of bringing a private prosecution The finding by the Bar Disciplinary Tribunal serves as a stark reminder of the importance of the prosecuting lawyer having a full and frank discussion with their client about the prospects of success before commencing a private prosecution. As explained in our previous blog, whilst private prosecutions offer an excellent legal remedy, they are typically subject to greater scrutiny than public prosecutions and lawyers who run these cases must take care to ensure they explain the risks, as well as the rewards, to their clients.
Badger baiting and bat nest destruction, seal shooting and raptor persecution are just some of the wildlife crimes that are becoming increasingly common in the UK, according to the recent Wildlife and Countryside Link’s Wildlife Crime report. These cruel and grotesque acts include forcing badgers to fight with dogs for sport, or enabling the illegal trade of products harvested from CITES-listed species. Sadly, successful prosecutions for these offences may represent only a fraction of the number of atrocities committed.
A simple caution is an out-of-court disposal intended for low level, mainly first time, offending. Accepting a caution has never been a straightforward decision however, one significant benefit was the reassurance that – in the usual course of events - a person would only be prosecuted for an offence when they had been issued with a simple caution, if...
Private prosecutions, once a “historical right” that was “rarely exercised” (according to Lord Wilberforce in Gouriet v Union of Post Office Workers (1978)), are now thoroughly integrated into our criminal justice system. Whether the result of dwindling CPS resources (see blog by David Sleight CPS and police struggle under the load of sex abuse investigations) or because of the public’s increased familiarity with the process from high-profile convictions such as ‘King Con’ or the Surfthechannel pirate, the number of private prosecutions being brought is on the rise.
Private prosecutions are a useful remedy for victims of crime and the only criminal remedy in circumstances where the state enforcement agencies fail to act. In cases of economic crime there will sometimes be merit in running concurrent civil and criminal proceedings. However, in such cases the motive for commencing criminal proceedings will inevitably be considered. It is established that a private prosecution motivated purely by spite or some other ‘oblique motive’ can lead the court to stay the proceedings as an abuse of process (R (Dacre) v City of Westminster Magistrates’ Court  1 Cr App Rep). However, the Court of Appeal has recently sought to distinguish between mixed motives and ‘oblique’ motives and has provided useful insight into what factors may legitimately be considered in determining whether a private prosecution, alongside civil proceedings, may be upheld.
Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)  UKSC 67.
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