On 19 July 2019, The Private Prosecutors’ Association (“PPA”) launched its first edition of the Code for Private Prosecutors (“the Code”). Its intention was to set out standards of best practice and highlight some of the unique features of private prosecutions for those intending to bring such prosecutions in the future. Whilst adherence to the Code remains voluntary, all members of the PPA have agreed to abide by it as a condition of membership, with a view to encouraging all participants involved in the private prosecutions process to do the same.
The right of any private individual or entity to bring a private criminal prosecution is enshrined in section 6 of the Prosecution of Offences Act 1985 (“POA 1985”). Whilst private prosecutions remain relatively rare in England and Wales, they have seen a steady rise in popularity over recent years, particularly in relation to cases involving economic crime. This is a consequence of public spending cuts reducing the resources of police and other enforcement agencies to investigate and prosecute crime. Recent Home Office data evidenced that the proportion of crimes solved by police in England and Wales up to March 2019 has now fallen to the lowest level ever recorded. As agencies focus on operational priorities, such as violent crime, sexual assaults and terrorism, they often lack the capacity to tackle fraud. In recent months, police commissioners have emphasised how acute the situation has become – for example, the Commissioner for the Metropolitan Police was quoted in The Guardian as saying “Criminals are going about their business unchallenged: fraud goes virtually unpunished and is not even included in the statistics”.
Possibly as a result of the impunity with which fraudsters can act, fraud-related offences are on the rise. In October 2019 the Crime Survey for England and Wales found that fraud incidents in the year ending June 2019 had risen by 15% and that Action Fraud, Cifas and UK Finance (the three main fraud reporting bodies) had seen rises of between 12-20% in the number of reported cases.
Individual and corporate victims frustrated with their inability to get traction with the authorities are inevitably turning in increasing numbers to private prosecutions. A private prosecution can have a number of other advantages over a state prosecution, including being progressed more expeditiously and the ability to exercise greater control over proceedings including; for example, accessing appropriate experts and selecting your own legal counsel.
However, different by their very nature to civil proceedings and encompassing features not found in state prosecutions, private prosecutions can pose particular challenges for those bringing them. Not all of the legislation, codes and guidance covering the conduct of public prosecutors is of mandatory application to private prosecutors, nor do they cover the complex issues that are unique to private prosecutions. Such issues include: improper motive or lack of objectivity on the part of the private prosecutor; attempts to use the criminal system to leverage settlement in civil disputes; and dealing with legal professional privilege in the context of disclosure.
By bringing experts in the field of private prosecutions together and creating a Code for Private Prosecutors, the PPA aims to address some of the lacunas in existing guidance, create a unified approach and provide a benchmark for good practice. Recent cases have highlighted the importance of such guidance.
For example, the Code sets out why it is necessary to apply the Full Code Test, even though there is no legal requirement for private prosecutors to do so. Whilst most lawyers practising in this field appreciate this point, unrepresented individuals may not. The recent case of R (on the application of Holloway) v Harrow Crown Court  11, 971-975 exemplifies that proceeding with cases that have no realistic prospect of conviction will not only result in their discontinuance, but also in adverse cost consequences for the complainant.
The chapter on client engagement provides clear guidance on the types of issues that professional advisers should consider addressing at an early opportunity with a lay client who wishes to bring a private prosecution. Clients are often not familiar with criminal proceedings, with the heightened duties and obligations that arise in private prosecutions or with the consequent risks. A failure to advise them properly can have serious consequences for both the client and their professional adviser.
The importance of ensuring that clients are properly advised is underlined by the Bar Disciplinary Tribunal’s finding of professional misconduct against a barrister last summer. They found that he failed to apply the Full Code Test appropriately, or to properly advise his client on the risk that the CPS could take over the private prosecution (and discontinue it) and of the potential for a cost award to be made against him.
The Code also clearly states the importance of a private prosecutor’s duty of candour when applying for a summons. Notwithstanding clear case law on this point (for example R (on the application of Kay) v Leeds Crown Court  EWHC 2842 (Admin)) complying with this obligation continues to give rise to issues. Appreciating what issues might be relevant to the judge’s consideration of whether to issue a summons is fundamental to full and frank disclosure, and failing to recognise this can be fatal to a case and have significant wider implications.
The well-publicised case brought against Prime Minister Boris Johnson over allegations he committed misconduct in a public office by “misleading the public” about Brexit has reiterated that the motive of the private prosecutor is a key consideration. The Administrative Court in that case indicated that the district judge’s finding that the prosecution was not vexatious as a result of its political motivation was flawed, and the decision would have been quashed on that basis (they had already determined that it should be quashed on an alternative ground). The Code draws attention to the fact that, whilst a private prosecution can be brought with mixed motives, there is likely to be heightened scrutiny of the process and, where the primary motive is unrelated to the proceedings, this is likely to constitute an abuse of the court’s process.
The Code provides also provides assistance in a number of other areas that have not featured in recent cases. The Disclosure chapter considers issues specific to private prosecutions, including whether it is appropriate for the private prosecutor to have responsibility for identifying relevant material and how to deal with the scheduling of material attracting legal professional privilege. The chapter dealing with the interaction between criminal and civil proceedings provides guidance on how to handle witnesses and the cross-use of material in such circumstances.
The Code offers detailed guidelines for private prosecutors and those who represent them, emphasising the overarching importance of acting (and be seen to act) fairly and with integrity at all times i.e. as a minister of justice.
It has been welcomed by many practitioners, with some hailing it as “essential reading for those contemplating bringing any type of private criminal proceedings as well as for those instructed to act on their behalf”.
Since its launch, we are aware that the Code has been used by practitioners in private prosecution proceedings and related cases, including as a benchmark against which a defendant can allege that the conduct of the private prosecutor falls short of the standards set out in the Code.
We hope that the Code will prove to be a valuable resource tool and point of reference for anyone involved in private prosecutions.