Private Prosecutions: A Blurred Line Between Recovery Of Damages And Public Justice?

• Published date: 10 September 2020
• Subject Matter: Government, Public Sector, Criminal Law, Constitutional & Administrative Law, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: BCL Solicitors LLP
• Author: Ms Anoushka Warlow and Cindy Laing

Anoushka Warlow and Cindy Laing discuss the safeguards surrounding the use of private prosecutions and their role in obtaining damages.

On 7 July 2020, the House of Commons Justice Committee heard evidence in connection with its inquiry into whether there are enough safeguards in place to prevent miscarriages of justice in private prosecutions. The inquiry followed a request made by the Criminal Cases Review Commission ('CCRC') arising out of concerns surrounding the safety of convictions secured in private prosecutions conducted by the Post Office.

Since 1999, the Post Office has privately prosecuted around 900 of its sub-postmasters and counter staff for, primarily, offences of theft, fraud and false accounting based on evidence emanating from its 'Horizon' computer system. However, it is now clear that, amongst other problems, Horizon was liable to technical errors which gave the appearance of accounting shortfalls. Notwithstanding these known issues, the Post Office continued privately to prosecute individuals seemingly without investigating or providing disclosure concerning the essential fallibility of the primary evidence relied upon.

When referring 47 of the resulting convictions for appeal earlier this year, the CCRC stated: ".in the context of [the Post Office's] combined status as victim, investigator and prosecutor of the offences in question - the CCRC considers that there are reasons for significant concern as to whether [the Post Office] at all times acted as a thorough and objective investigator and prosecutor..."

Sufficient safeguards

Any individual or company has the right to bring a private prosecution. That right, now found within section 6 of the Prosecution of Offences Act 1985, has long been justified as a 'historical right' which acts as a "useful constitutional safeguard against capricious, corrupt or biased failure or refusal of authorities to prosecute offenders against the criminal law" (Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435). More recently, private prosecutions have been cited as an important remedy for victims who find that public authorities, as a consequence of financial cutbacks, are unable to investigate or pursue crimes committed against them.

Whilst the Justice Committee's inquiry will focus on cases brought by large organisations, any private prosecution carries by nature an inherent risk of unfairness to a defendant. A private prosecutor will almost by definition have a personal interest...