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.
Myth – I’ll recover all of the money I have spent on bringing a private prosecution at the end of the case.
Many individuals are attracted to private prosecutions out of a mistaken belief that the money they spend on the prosecution will be recovered in full at the end of the case. Whilst it is correct that it is possible to recover the costs of bringing a private prosecution the award of costs is discretionary and the barriers to costs recovery should be properly understood by prosecutors before proceedings are commenced.
The starting principle is this: A court may in any proceedings in respect of an indictable offence order the payment out of Central Funds (from the taxpayer not the offender) of such amount as the court considers reasonably sufficient to compensate a private prosecutor for any expenses properly incurred by them in proceedings.
That general entitlement to costs recovery can then be limited in the following ways:
Firstly, it is possible for the private prosecutor to recover the costs of bringing a private prosecution for some but not all offences. Some crimes at the lower end of the scale of seriousness, including most driving offences and common assault (summary only offences) do not meet the criteria for recovery of prosecution costs. The offence must be serious (indictable) to be eligible for costs recovery.
Secondly, often the private prosecutor will need the help of investigators to collate evidence or gather evidence in a form that is admissible in the criminal courts. Investigators require payment for their services. The Criminal Cases Unit of the Legal Aid Authority has issued guidance which excludes investigation costs from a prosecutor’s recovery of costs from Central Funds. This is an issue which is currently under appeal but as the law stands the prosecutor will face an uphill battle recovering investigation expenses that were incurred prior to the commencement of the criminal proceedings.
Thirdly, whilst it may be possible to recover some of the costs, it may not be possible to recover all. The law states that where the court considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount, the payment may be for such lesser amount as the court considers ‘just and reasonable’. Some of the factors the court may take into account in reaching the appropriate quantum include:
- Did the prosecutor engage with the traditional investigation and prosecution agencies before deciding upon a private prosecution? If not, why not?
- Did the prosecutor act reasonably when instructing solicitors? Did the prosecutor test the market before instructing their chosen lawyers? Did their case require unique expertise that could only be provided by the chosen lawyers?
- What level of counsel was appropriate for the complexity of the case? Could it be argued that it was necessary to have experienced counsel to match that representing the defendant?
- What unusual or exceptional costs were incurred, can these be justified or endorsed by the Judge as being helpful and necessary for the case?
- How clear and well-supported is the information that the prosecutor collated in support of their claim for costs; in other words, did the lawyers present the claim for costs in a way that demonstrates those costs are ‘just and reasonable’?
Fourthly, the conduct of the prosecutor and their lawyers in the course of criminal proceedings will have an impact on whether an award is made, and if so, the amount that will be recovered. Where there is misconduct on the part of the prosecution, a private prosecutor should not be awarded costs out of Central Funds. Worse still, where it can be demonstrated by the defendant that they have incurred costs “as a result of unnecessary or improper act or omission by, or on behalf of, another party to the proceedings” then the prosecutor can find themselves both out-of-pocket for their own costs but also being ordered to pay costs to the defendant.
Finally, the recent review on private prosecutions by the House of Commons Justice Committee as we previously highlighted here, suggests that costs recovery may soon undergo further restrictions. In considering the cost that private prosecutions have on the taxpayer, the Justice Committee made the following recommendation:
“The Committee agrees with the CPS that the Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds. We acknowledge the proposal made by the Centre for Women’s Justice that private prosecutors’ recoverable costs should be capped at legal aid rates. We think there should be no disparity between the claims that can be made from central funds by prosecutors and defendants. We also support the proposal made by the CLRNN that defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS.”
The current state of the law is that an order for the recovery of the prosecutor’s legal costs should be made save where there is good reason for not doing so. But, as we have explained, there are both limitations and exceptions to this rule. If the recovery of costs is a critical factor in deciding whether to commence a private prosecution then it is vital that the prosecutor takes advice from experts in the field to ensure the case is conducted in such a way to maximise the chance of recovery from the outset. Failure to do so could result in a very costly mistake.
ABOUT THE AUTHOR
Melinka Berridge is a Partner at Kingsley Napley. She is a founding member and the Executive Secretary of the Private Prosecutors' Association and she leads the team at Kingsley Napley responsible for the conduct of private prosecutions.
-  S17(1) of the Prosecution of Offences Act 1985
-  S17(2A) of the Prosecution of Offences Act 1985
-  R v Esher and Walton Justices ex p Victor Value & Co Ltd  111 Sol Jol 473.
-  Section 19 of the Prosecution of Offences Act 1985
-  Para 37 of the Report of the House of Commons Justice Committee Private Prosecutions: safeguards (October 2020)
-  Part 45 of the Criminal Procedure Rules and the associate Practice Direction