By Nicola O’Connor is a Partner at Russell-Cooke
A defendant facing a private prosecution is a somewhat different experience to being prosecuted by the Crown Prosecution Service. There are a number of reasons for this. First and foremost there is an issue of resources. Public bodies during these times of austerity are often in difficulty in finding sufficient recourses to investigate some matters, in particular complex fraud matters that perhaps have cross border elements. There are many occasions when the Crown Prosecution Service/police or serious fraud office decides not to pursue matters for various reasons. The complainants however, feel strongly enough to pursue a prosecution of their own.
Private Prosecutions in general
Private prosecutions have long been a part of the criminal justice system. Private prosecutions brought by organisations such as the RSPCA have been common place in Magistrate’s Courts throughout the country for many years.
However, more recently the legal landscape has seen law firms and large departments in existing firms set up focusing solely on private prosecutions. The numbers of larger scale prosecutions particularly in respect of fraud have increased in the Crown Courts. Our experience of defending these prosecutions is that they require a very different approach to those prosecutions brought by the Crown Prosecution Service.
The Prosecution brought by the Crown Prosecution Service
Prosecutors working on behalf of the Crown Prosecution Service follow a code for Crown Prosecutors. The Code is a public document, issued by the Director of Public Prosecutions. It sets out the general principles Crown Prosecutors should follow when they make decisions on cases. Importantly those decisions include whether it is in the public interest to bring a case at all, whether there is sufficient evidence to bring a case and whether there is a realistic prospect of conviction.
It is somewhat surprising that private prosecutors are not required to meet that same standard. Many private prosecutors do follow the CPS code of practice and believe that it is good practice to do so. However there are others that do not. Indeed, we have heard private prosecutors argue in court quite proudly that they are not subject to such provisions and need not follow that code at all.
We have seen evidence from private prosecutors who chose not to follow those codes of very different behaviour to what one would expect from a Crown Prosecution Service prosecutor in their approach to witnesses for example. This is a great cause for concern for those of us defending private prosecutions.
Possible motivations for bringing a private prosecution and the effect that may have on defendants
As I have referred to briefly above there may be a number of reasons why an organisation or individual decides to bring a private prosecution. It may be that a complainant is dissatisfied by police investigation or a decision by the Crown Prosecution Service not to pursue a prosecution for some reason. However, there may also be other reasons why private prosecutions may be considered a preferred option for some. There may be commercial considerations. Some private prosecutors advise clients that they can hope to recover more of their fees and lost funds if they pursue a private prosecution. It is also often the case that private prosecutions are brought in tandem with civil proceedings and one is used in leverage over the other in order to obtain the best possible settlement. Defendants quite routinely find themselves facing a case before the Civil Courts and the Criminal Courts in respect of the same issues.
Serious difficulties that can arise with private prosecutions
One of the most serious issues that we see in private prosecutions result from the solicitor client relationship. The dynamic between a solicitor / barrister being instructed directly by the client can generate some difficulties. There is usually a healthy distance between those prosecuting and any complainant in a case brought by the CPS. A lawyer instructed to prepare a private prosecution has a much closer relationship with the complainant than a Crown Prosecution Service Lawyer would do in any case and this can create an unhelpful dynamic within a case. The Crown Prosecution Lawyer is able act independently of the complainant and bring a case which they believe is in the interest of justice. However, a lawyer acting for a complainant in a private prosecution has a very different relationship with that complainant and may have different considerations when deciding to mount a prosecution.
We have seen difficulties arise at trial when that close relationship can sometimes lead to conflicts of interest. For example when a prosecution is brought by the Crown Prosecution Service if their conduct should fall short the court may well make comments criticising those elements of the prosecution. However in our experience when that happens in a private prosecution it can sometimes lead to conflict between the private prosecutor and their clients. Defendants are often left wondering, rightly or wrongly whether the approach taken in the prosecution thereafter reflects what is in the interests of justice, the complainant or indeed the law firm prosecuting acting in its own interests.
Another difficulty in defending private prosecutions are issues relating to legal privilege. Rightly or wrongly defendants often feel very suspicious about those documents that attract legal privilege. As there is no one that they see as being truly independent in the case to make decisions in relation to documents that should attract legal privilege there is often a sense of inherent unfairness amongst defendants facing private prosecutions.
There are always going to be disputes in the Crown Court about those documents that attract legal professional privilege. However, the advantage that Crown Prosecutors have is that there is some distance between them and the complainant. In a private prosecution defendants often see a much closer lawyer client relationship.
Finally another issue which often arises in private prosecutions particularly in fraud cases is in relation to the disclosure process itself. In cases investigated by the police and brought by the Crown Prosecution Service often a Police Officer or Lawyer is in charge of deciding what evidence should be disclosed to the defence. In a private prosecution however those decisions are often made in conjunction between the lawyers and the complainant themselves. Whilst the rules of evidence do not change as a result of a prosecution being private or otherwise, it is easy to see that the perception can often be that this process is perhaps open to abuse. Rightly or wrongly the perception of the situation can be one of inherent unfairness when compared with public prosecutions.
Whatever your view about the rights and wrongs of private prosecutions it is important that public perception as to the fairness of these prosecutions is carefully considered. In the case of defendants who find themselves facing both civil and criminal investigations the financial cost let alone the personal cost of such enquiries are often crippling quite aside from any penalties the court may impose if convicted.
Nicola O’Connor is a Partner at Russell-Cooke