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.
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