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Julian Jones article on Private Prosecutions Code

The exercise of the ancient common law right to conduct a private prosecution has become a growth area in the last decade. A number of members of Park Square Barristers now receive instructions to advise and appear in court in this burgeoning area. Please click here to view the private prosecution team.

On Friday 19th July 2019, The Private Prosecutors’ Association launched the First Edition of the Code for Private Prosecutors (the Code).

Adherence to the Code is voluntary but members of the PPA confirm that they will abide by it.

In my view, the Publication of the Code is a welcome development in ensuring the highest professional standards are maintained, and in providing a source of guidance and reference. I attempt to set out the more important points below.

Chapter 1

Sets out introductory matters and definitions.

Chapter 2 – Engagement

This applies where, as will often be the case, solicitors and / or counsel are instructed by the prosecutor to conduct the prosecution.

The core principle is that at or before the point of engagement, the private prosecutor must be informed of those issues that are specific to a private prosecution.

Initial points of advice to private prosecutor client

  • Obligation to prosecute as “Minister of Justice” as per public prosecuting authorities
  • CJS cannot be used solely or primarily to achieve a purpose for which it is not designed (cf abuse of process)
  • Lawyers must withdraw or refuse to act if they consider the conduct of the private prosecutor to be improper or vexatious
  • Whilst a private prosecution does not have to satisfy the test in the Code for Crown Prosecutors, in practice, a solicitor or barrister is likely to advise against bringing a private prosecution if the Full Code Test is not met
  • Difficulties likely to arise where defendants / material located outside jurisdiction
  • Investigative information may need to be withheld from witnesses
  • Role and obligations of any potential expert witnesses
  • Possibility that a private prosecution will be referred to the DPP and process that will be followed by CPS thereafter including options for CPS to discontinue or take over the prosecution itself
  • Duties of retention and scheduling of unused material
  • Duty of disclosure
  • Circumstances where information/material will not be shared with the client/private prosecutor and where decisions (including disclosure decisions) will be made without reference to them
  • Issues concerning LLP
  • Circumstances in which a private prosecution can and cannot properly be terminated and the potential cost consequences
  • Confiscation and compensation regimes
  • Risks associated with pre-trial publicity

Costs – points of advice to include

  • Importance of sufficient means to fund the case to conclusion;
  • Circumstances in which costs may be ordered against the private prosecutor
  • Circumstances in which costs may or may not be recovered from Central Funds or the defendant
  • In a substantial case, the Court may consider what efforts have been made by the private prosecutor to examine competition in the market, test it and seek tenders or quotations before selecting the solicitor and advocate instructed when determining the amount of costs that might be payable. Practitioners will be mindful of the observations of the Court in R (Virgin Media Ltd) v Zinga [2014] 5 Costs L.R. 879 (at 890) in giving this advice.

Whether a report to a law enforcement agency has been made

  • The private prosecutor should be asked whether a report has been made to a relevant law enforcement agency
  • If a report has not been made, the prosecutor should be advised that it has the option to do so
  • It should not be suggested that a private prosecutor must report a suspected crime to a state agency, but a decision not to do so should be properly recorded, with reasons, and the potential consequences of that decision explained
  • If a report has been made but the agency has declined to prosecute, the private prosecutor should be advised of the victim’s right of review process, the need to disclose to the Court (when applying for a summons) and the defence (thereafter) the fact that an agency has declined to prosecute, any reasons given for that refusal and the potential impact of that decision on a private prosecution

Client relationship

  • Provide a preliminary assessment of the evidence in the case
  • Provide further advice on issues which may arise as a result of the private prosecutors’ more limited powers to obtain evidence pre-charge, for example, where material is held by a third party or overseas
  • Identify which individual has authority to give instructions and receive advice on behalf of the private prosecutor (including instructions on the acceptability of pleas)

Chapter 3 – The investigation

Core points

  • Seek to use same codes of practice and guidance as apply to law enforcement investigators
  • Proper procedures must be in place for recording of material
  • Ensure legal compliance as data processors
  • Impartial, objective and independent spirit – comply with paragraph 3.5 of the CPIA Code of Practice
  • Investigator(s) to agree with the prosecution written terms of reference at the outset regarding scope
  • Digital evidence – record search terms and the review methodology applied. Follow ACPO Good Practice Guide for Digital Evidence and the Attorney General’s Guidelines on Disclosure where applicable.
  • Interviews with suspects – comply with PACE – codes C, E and F
  • In principle, there is no restriction on a suspect being invited to attend an interview. However, a private prosecutor should not suggest that an adverse inference might be drawn from any failure to attend or answer questions. A suspect must be told that they do not have to answer any questions, that they are free to leave at any time, that they are entitled to take legal advice and that anything they do say may be given/used in evidence against them
  • Interviews with witnesses – it is best practice for witness statements to be taken by experienced investigators or litigators. A full record should be kept of all contact with potential witnesses
  • Normal rules of criminal procedure apply
  • Assistance from the Court – the duty of full and frank disclosure
  • Privacy, surveillance and covert activities – RIPA 2000 and IPA 2016 do not apply to private investigators BUT private prosecutors should have regard to all relevant legislation in commissioning or undertaking any covert activity, and document any decisions taken to commence surveillance. Private prosecutors should be aware that certain forms of surveillance that are available to public authorities are not available to private investigators. Their use may constitute a criminal offence. Written records should be kept at all stages to ensure compliance with the principles of necessity and proportionality
  • Costs agreements – any agreement reached with the police force for the private prosecutor to make a contribution to the police costs of investigation, the details of this agreement should be disclosed to the defence

Chapter 4 – Disclosure

  • Ensure compliance with: CPIA 1996 and CPIA Code, CrimPR, AG’s Guidelines, Judicial Protocol on the Disclosure of Unused Material in Criminal Cases; CPS Disclosure manual; and common law obligations (R v DPP ex parte Lee [1999] 2 All ER 737)
  • Approach must be straightforward, transparent and open
  • A Disclosure Management Document (“DMD”) should be produced (unless to do so would be disproportionate in any given case) to achieve a pro-active and transparent approach, to give the Court confidence that the prosecution is complying with its disclosure obligations and to engage the defence in the disclosure process at an early stage
  • If a DMD is produced, it should be used to summarise the approach taken by the prosecution in dealing with unused material. In appropriate cases, the document should further be used to explain clearly the limits of the prosecution work on disclosure and why those limits have been set
  • Approach to legal professional privilege (“LPP”) material must be open and rigorous and in a way that is compliant with the CPIA and CPIA Code
  • Prosecution must deal with material that might be subject to a claim for legal professional privilege in a manner that is consistent with the requirements of the CPIA and the CPIA Code
  • All relevant non-sensitive material, including any material to which LPP may apply, must be scheduled on the non-sensitive schedule and disclosed in accordance with the statutory test. In order to continue with the private prosecution, the private prosecutor must not withhold material that meets the test for disclosure on the basis that it attracts legal professional privilege
  • Sensitive unused material must be scheduled on a sensitive material schedule (MG6D or similar) together with the reason why the Disclosure Officer (if there is one) or the prosecutor believes the material to be sensitive. However, material will be sensitive only if its disclosure would give rise to a real risk of serious prejudice to an important public interest. Examples of such material can be found within the CPIA Code of Practice at paragraph 6.15
  • Role of private prosecutor in the process must be considered at an early stage including identifying the potential for conflicts of interest in involvement
  • Parallel civil proceedings – consider relevance for scheduling purposes and document approach in DMD

Chapter 5 – Charging and commencing proceedings

  • Instructed lawyers must be satisfied of prima facie case
  • No legal requirement to apply Full Code Test but best practice to do so
  • Document the decision
  • If working closely with a state law enforcement agency should consider whether it is appropriate to agree a Memorandum of Understanding, covering the extent and nature of the co-operation between the private prosecutor and the state agency.
  • Application for summons must be compliant with Part 7 CrPrR and be accompanied by a schedule of draft charges.
  • Interview response must be included in application where applicable
  • Provide skeleton in appropriate cases
  • No right to an oral hearing of the application for a summons but be prepared to attend an oral hearing if required to do so by the Court
  • May be circumstances in which it is appropriate for the prosecution to suggest that such a hearing takes place, for example in cases involving particularly complicated or unusual charges
  • If there is an oral hearing, and it is conducted on an ex parte basis, the prosecution should ensure that a careful record is kept of the hearing. The Judge or Magistrate hearing the application for a summons should be encouraged to hand down a brief formal ruling, with reasons
  • A magistrate considering a summons application must be informed of any previous decisions of the Court relating to the same subject-matter or proposed proceedings, including any refusal to issue a summons and the reasons for that refusal (CrPrR Part 7)
  • Consider venue with reference to where the offence took place, the location of the victim and witnesses and the location of the defendant
  • Compliance with duty of candour including disclosure of any material potentially adverse to the application and make clear application is by a private prosecutor
  • Ensure Court fully informed of any other disputes between the private prosecutor and the proposed defendants, including civil actions, whether in England and Wales or any other jurisdiction
  • Inform the Court of any approach which it has made to state investigative or prosecuting authorities about the matter that is the subject of the prosecution, and inform the Court of any reasons provided by the authority for not accepting the case
  • Private prosecutors must be made aware that the withholding of information may lead to a summons being set side
  • Where the Court has to consider the question of bail, the private prosecutor must be made aware of the presumption in favour of bail and the application and framework of the Bail Act; they must also be made aware that an application for a remand into custody can be made only within the terms of the Bail Act and cannot be used as a punitive measure or to seek to gain a tactical or other advantage
  • Private prosecutors should seek to obtain the antecedent history (“PNC”) of any defendant and make copies of the same available to the Court. The Police Liaison Office (“PLO”) will frequently not disclose the PNC to the private prosecutor. If that occurs, an order should be sought for the PLO (or the police) to disclose the PNC to the Court. The full name, date of birth and residential address of the defendant will need to be provided in order for the PNC to be located
  • Monitor CTLs if bail refused, applying CPS Protocol

Chapter 6 – Referral to the DPP

  • No obligation on a private prosecutor to notify the CPS, the DPP or any state agency that it is contemplating, or that it has commenced, a private prosecution
  • Where offences require the consent to prosecute of the DPP or the AG, the private prosecutor must seek consent before commencing proceedings
  • If an offence requires the DPP’s consent to prosecute, and if such consent is given, the CPS, (applying its current guidance) will take over and conduct the prosecution
  • The DPP has the power under section 6(2) of the Prosecution of Offences Act 1985 to take over private prosecutions, but is not obliged to do so. That power may also be exercised by a crown prosecutor
  • Where they conclude that the prosecution does not meet the Full Code Test set out in the Code for Crown Prosecutors, the CPS should take over the private prosecution and stop it
  • If the case meets the Test, the CPS has a discretion whether to take the case over and prosecute it or to permit the private prosecution to continue
  • The manner in which the power to take over a private prosecution is exercised is explained in the CPS’s published Legal Guidance
  • The CPS may learn about a private prosecution in a range of ways, but most commonly through a referral to it by (1) a defendant, (2) the prosecutor or (3) the Court. A request to intervene may be made at any stage, by any of these parties, including after the trial has started, between a first trial and a subsequent retrial or following conviction (i.e. before sentence or appeal)
  • When the CPS receives a request to intervene in a private prosecution, it will contact the prosecutor, the defence and the police to ask for information to be supplied, usually within 14 days
  • There is no obligation on the private prosecutor to provide anything to the CPS. That being said, failure to provide adequate information may result in the CPS concluding that the case should be taken over and stopped
  • Following a request from the CPS, it is good practice for the private prosecutor to provide various documents as specified in the PPA Code
  • If the private prosecutor so wishes, they may also make representations to the CPS reviewing lawyer as to whether the DPP should exercise their powers to take the case over

Chapter 7 – Abuse of process

Same general principles apply but some will be especially relevant

Motive

  • many private prosecutions will be brought with mixed motives, most obviously where the prosecutor claims to be the direct victim of the alleged misconduct
  • Mixed motives may result in heightened scrutiny of the process, to ensure that the case is conducted fairly
  • Where the primary motive for the prosecution is unrelated to the proceedings, it is likely to render the prosecution a misuse or an abuse of the Court’s process. A useful touchstone for consideration of the issue may be to ask whether the criminal legal process is being used against another primarily to accomplish a purpose for which it is not designed

Delay – key questions to ask

  • When did the prospective private prosecutor first (i) become aware of the facts or issues which give rise to the prosecution and (ii) realise that a criminal offence may have been committed?
  • What, if any steps has the prospective private prosecutor taken to deal with the matters giving rise to the prosecution before applying for a summons?
  • Is there a reasonable explanation for any delay?
  • Is there any evidence which no longer exists?

Adverse publicity

  • Legal advisers should warn private prosecutors for whom they act that adverse and/or excessive media publicity can cause the fairness of the ensuing trial to be called into question and can potentially become the subject of legal argument
  • Particular application in crowdfunding cases

Disclosure

  • Need to advise a finding of abuse could follow from disclosure failures

Concurrent civil proceedings

  • Parallel criminal and civil proceedings may be pursued so long as to do so is fair, proportionate and properly motivated
  • Not appropriate to launch criminal proceedings purely to influence extant or prospective civil proceedings: (G) v S and S [2017] EWCA Crim 2119

Other issues

  • The private prosecutor must be advised that there are circumstances in which information/material will not be shared with them and where disclosure and decisions about the case will be made without reference to them
  • Witness familiarisation – comply with Momodou (Practice Note) [2005] 2 All ER 571 and disclose to defence. See also CPS Guidance
  • Promises not to prosecute – check factual background
  • Costs – private prosecutor at risk in the event of a stay – warn at outset

Chapter 8 – Interaction between civil and criminal proceedings

  • Need for careful management – scope for conflict or tension between the strategies adopted in each of the proceedings, the timeframes within which they are operating and the applicable procedural rules. Parallel proceedings may also increase cost, put pressure on available resources, and add complexity to the disclosure process
  • Must not use the threat or commencement of a private prosecution as a strategic tool to add leverage to a party’s position in civil or other proceedings
  • Good practice to record motive in writing
  • Disclosure – may need to disclose in criminal proceedings when would not otherwise have done so in civil proceedings. Advise ASAP
  • Material that has been disclosed, served by or otherwise received from counterparties in civil or regulatory proceedings may be subject to restrictions against collateral use.14 This is an issue that should be resolved as early as possible, particularly if the prosecutor is being asked to review such material in connection with advising on the merits of a private prosecution. The prosecution may be required to apply for permission to use that material, if it does not fall within one of the exceptions provided for by the Civil Procedure Rules
  • Care must be taken to ensure that interaction with a witness which may be permissible in a civil case does not prejudice any ongoing prosecution
  • Witnesses who have given civil statements may have done so with the benefit of disclosure that has been made in the course of those proceedings. The prosecution will need to review and potentially disclose unused material that was generated in the course of drafting civil statements, which may include privileged material
  • Private prosecutors should consider whether it is appropriate to request a stay of the concurrent civil proceedings until after the criminal proceedings have concluded

Chapter 9 – Trial

  • The private prosecutor must be reminded that all lawyers instructed by the prosecution in a criminal trial must comply with their professional duties, as defined by the relevant professional bodies
  • Farquharson guidelines – to be applied by prosecuting advocate – see observations of Thomas LCJ in R v Zinga [2014] 1 Cr. App. R. 27
  • Continuing duty on the prosecution to keep disclosure under review. The private prosecutor should be advised in advance of the trial that disclosure could be made without reference to them, either generally in the proceedings or in certain exceptional circumstances, for example, if they are giving evidence
  • It may be that the private prosecutor’s evidence discloses the existence of material which has not been provided to their lawyers for review. In those circumstances, disclosure should be made to the Court and defence of the fact that no such material has been made available for review. Exceptionally, it may be appropriate to seek permission from the trial judge and defence to speak to the private prosecutor for the sole purpose of locating any such material

Chapter 10 – Sentencing, confiscation and ancillary orders

Confiscation

  • Proceeds will normally go to the state
  • BUT the Court has the power to order compensation be paid out of the proceeds
  • The decision to instigate confiscation proceedings should be made in the public interest and prosecuted with that interest paramount
  • In considering whether to institute confiscation proceedings, the lawyer acting for the private prosecutor should explain to the private prosecutor that they will have regard to any guidance periodically issued by the CPS or the Attorney General and that the Court will apply the confiscation regime in a way that is compliant with Article 1 of the First Protocol to the ECHR.16
  • Early consideration must be given to applying to the Crown Court for s.40 restraint orders and the private prosecutor should be advised of the enhanced duty of candour expected by the Court in ex parte applications
  • Nothing to prevent private prosecutor initiating confiscation
  • Consider whether assistance of appropriate officer (s378(1) POCA 2002) required in order to investigate properly the defendant’s financial circumstances
  • Any agreement between the private prosecutor and an appropriate officer or body providing an appropriate officer should be made with reference to the principles set out in
  • Parallel civil proceedings – note if Court “believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct”, there is a discretion rather than an obligation to make a compensation order.
  • A private prosecutor must bring any existing or intended proceedings of which they are aware to the Court’s attention.

Sentencing

  • Duty to assist the Court including with reference to sentencing guidelines
  • Should obtain PNC print – see above as to process and pitfalls
  • Consider whether it is appropriate to invite a victim, or a family member, to provide a Victim Personal Statement, a Community Impact Statement or an Impact Statement for Business.
  • Consider any other appropriate ancillary orders
  • Consider referral of a sentence though to be unduly lenient to the AG in appropriate cases

Chapter 11 – Costs

General principles

  • The purpose of a costs order is to compensate the prosecutor for their reasonably incurred (legal) costs
  • A successful private prosecutor should, in the first instance, consider making an application against the defendant, before it considers an application for costs out of Central Funds
  • Such an award is discretionary and the award of costs should be “just and reasonable”
  • An application for costs against a defendant can include investigators’ costs / costs of the investigation
  • 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
  • See Part 45 CrPrR and associated Practice Direction
  • The private prosecutor must be made aware that, in a substantial case, the Court may consider what efforts have been made by the private prosecutor to examine competition in the market, test it and seek tenders or quotations before selecting the solicitor and advocate instructed when determining the amount of costs that might be payable
  • Where there has been misconduct on the part of the prosecution, a private prosecutor should not be awarded costs out of Central Funds
  • Risk of wasted costs of Defence if Court finds prosecution should never have been brought

This article is available to download.