Finding The Balance ' Public Law Duties In Private Prosecutions

• Published date: 02 November 2022
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Weightmans
• Author: Michael Balmer

Despite the perils of bringing private prosecutions, there is a growing trend for organisations and agencies to consider bringing such actions.

The ongoing Post Office Horizon Public Inquiry raises once again the issue of private prosecutions in England and Wales and the perils for private prosecutors and defendants facing prosecution.

Between 2000 and 2014, more than 700 Post Office employees, including sub post masters and mistresses, were prosecuted and convicted by the Post Office when faulty accounting software made it appear that money had been stolen from branches. The prosecutions relied heavily on information from the Horizon computer system which had been introduced in 1999. It was subsequently established that the computer system was flawed, leading to the overturning of many convictions and claims for compensation totalling '58 million.

The cases have necessitated the instigation of a statutory public inquiry, which remains ongoing (https://www.postofficehorizoninquiry.org.uk/). In his recent opening statement, counsel to the inquiry Jason Beer KC outlined the inquiry will put the conduct of lawyers during the course of these cases under the spotlight (Jason Beer KC).

Given the well-publicised issues over public funding of the police and prosecuting authorities, it is perhaps unsurprising that the increase in private prosecutions over recent years looks set to continue. Despite the perils of bringing private prosecutions, there is a growing trend for organisations and agencies to consider bringing such actions. It is therefore important that organisations understand the risks of private prosecutions and how to safely navigate them.

Bringing a private prosecution

A private prosecution, under the Prosecution of Offences Act 1985, can be brought by a private individual or entity who/which is not acting on behalf of the police, Crown Prosecution Service or other prosecuting authority nominated by the state.

A private prosecutor must maintain the same standard of conduct as a public authority, including a duty of full and frank disclosure:

In R (on the application of Kay and another) -v- Leeds Magistrates' Court and Another [2018] EWHC 1233 (Admin) the Divisional Court (Sweeney J and Gross LJ) addressed the importance of the duty of candour.

In that case, the private prosecutor applied at Leeds Magistrates Court for summonses against the defendants alleging four counts of fraud. However, he failed to notify the court that he had lost in civil...