Kevin Dent QC, explores the key provisions of the private prosecutor’s code of practice (the code) and that the code is, for better or for worse, now a reality.

Private prosecutor's voluntary code of conduct aims to provide best practice

The Private Prosecutor’s Association (PPA) has published the final first edition of the Code for Private Prosecutors on its website. The PPA is a membership organisation bringing together those practising in field of private prosecutions as well as academics with an interest in this field. The code aims to provide a benchmark for best practice in the conduct of private prosecutions that have been growing in number. Adherence to the code is voluntary but members of the PPA have confirmed that they will abide by it.

What is the background to the publication of the code and what does it aim to do?

The background to the publication to the code is, in part, the recent setting up of the Private Prosecutors Association (PPA)—a self-appointed group set up recently by some practitioners involved in private prosecutions. A stated PPA aim is to recognise and promote best practice in this field and so the drafting of the code is natural extension of this. The code also perhaps reflects the growth of the private prosecution market and the perceived need to solidify and regularise it in the face of recent challenges to the legitimacy and integrity of non-state prosecutions brought about by high profile cases, of which Johnson v Westminster Magistrates' Court [2019] EWHC 1709 (Admin), [2019] All ER (D) 10 (Jul) is but one of a long chain.

What are the key provisions of the code?

The code aims to cover all of the basic areas where private prosecutions are likely to give rise to particular issues. It sets out a number of ‘musts’, which it states practitioners and private prosecutors must follow, and ‘shoulds’, where the code indicates best practise dictates a certain course. As well as, helpfully, delineating the basic relationship between the private prosecutor and those representing them, the section on client engagement spells out the basic duties of practitioners to act as minsters of justice:

‘Advocates and solicitors who have conduct of private prosecutions must observe the highest standards of integrity and of regard for the public interest. They have a duty to act as Ministers of Justice in preference to the interests of the client who has instructed them to bring the prosecution. They owe a duty to the court to ensure that the proceedings are fair and that the case is dealt with justly.’

Commensurate with that, the code states that those acting on behalf of a private prosecutor must withdraw or refuse to act if they consider the conduct of the private prosecutor to be improper or vexatious.

Other key provisions in the code include:

  • Investigations should be conducted impartially, objectively and independently and should comply with paragraph 3.5 of the Criminal Procedure and Investigations Act 1996 (CPIA 1996) code of practice as well as to follow reasonable lines of enquiry whether pointing towards or away from guilt
  • The Association of Chief Police Officers (ACPO) good practice guide for digital evidence and the Attorney General’s guidelines on disclosure should be followed where applicable
  • In relation to disclosure, the prosecution must ensure it complies with relevant provisions of CPIA 1996, CPIA 1996 code of practice, the Criminal Procedure Rules 2015, Si 2015/1490, the Attorney General’s guidelines on disclosure, judicial protocol on the disclosure of unused material in criminal cases, Crown Prosecution Service (CPS) disclosure manual and the obligation to disclose material before the requirements of the CPIA 1996 are triggered (R v DPP, ex p Lee [1999] 2 All ER 737, [1999] Lexis Citation 2321).
  • A disclosure management document should be produced unless to do so would be disproportionate
  • In terms of legal professional privilege (LPP), the prosecution must deal with material that might be subject to a claim for LPP in a manner that is consistent with CPIA 1996 and that, 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 LPP.
  • Provisions for the laying of informations, emphasising the duty of candour when doing so
  • A duty to ensure that private prosecutions are not being brought for improper motives, where the criminal legal process is being used against another primarily to accomplish a purpose for which it is not designed—it would not be appropriate to launch criminal proceedings purely to influence extant or prospective civil proceedings and that the private prosecutor 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
  • In terms of costs, that, wherever possible the primary application for a prosecutor’s costs should be made against the convicted defendant (the code perhaps places more emphasis on this than on provisions for applying for costs from central funds).

How do you expect this to be applied in practice?

Although the code is necessarily voluntary it is, rightly or wrongly, likely to become a benchmark for the standards expected when private prosecutions are brought. It follows that all private prosecutions are liable to be judged in accordance with the code, whether or not the private prosecutor in question considers that the provisions of the code are correct or appropriate.

It must be expected, therefore, that those prosecuting and defending such cases are likely to make reference to the code, particularly in areas that are often hotly contested such as LPP, motive for bringing prosecutions/abuse of process and disclosure. The code is likely to be referred to also in cases where there is a challenge at the stage of laying an information. Perhaps also in relation to costs.

Thus, both those involved in the drafting of the code and those currently outside of the PPA will most likely find themselves caught within the provisions of the code whether they agree with them or do not. In the light of this, practitioners may well wish to structure cases around a checklist or template based around the provisions of the code.

Do you foresee any issues with the code being applied? Is that an issue that the code is voluntary at the moment? Could it give rise to, for example, abuse of process challenges if not followed?

The code sets out quite a complex structure for private prosecutions, such that the bringing of them will ordinarily require considerable resources and expertise. This will work well in the larger cases brought by or on behalf of corporates or private prosecutors with deep pockets. The code may, therefore, work well for large-scale prosecutions that state prosecuting authorities do not have the resources to bring. The code may enhance the legitimacy of such cases and ensure that they are brought in a way that, in effect, complies with all the obligations of state-brought prosecutions. In reality, the code stipulates for prosecutions that are state standard but brought independently of the state sector rather than ‘private’ prosecutions in the traditional sense.

The code is likely to fit less well, rightly or wrongly, with the smaller cases brought by individuals who may have reason to feel strongly motivated about the conduct that gives rise to a prosecution. Such ‘single cause’ private prosecutors may find that they lack the means to successfully bring about a prosecution that is fully code compliant.

They may not withstand abuse of process applications brought about by well-resourced defendants who will be able to make reference to various strictures under the code.

Are there any other points practitioners should note about this?

Practitioners should note that, under the code, the primary expectation is that costs should be applied for from the defendant. This may have some effect on the business model that is used when investigating and bringing cases and the understanding between the private prosecutor and those representing them.

Also, the provisions relating to LPP may help to resolve the difficulties that sometimes arise between practitioners and private prosecutors in relation to material subject to LPP but otherwise disclosable under CPIA 1996. The stipulation that such material be disclosed, notwithstanding that LPP may attach to it, may lessen some of the difficult conversations that sometimes occur about whether such material be disclosed.

The code is, for better or for worse, now a reality. Many established practitioners will, in fact, have been been acting in accordance under the terms of the code already, ensuring that prosecutions are brought with high standards of integrity and fairness. Practitioners now, however, should have regard to it lest they face criticism and challenge from the court who will almost inevitably ask ‘have you followed the code?’.

This article was originally published by Lexis Nexis PSL as part of their Corporate Crime Series. 

Kevin Dent QC is a highly persuasive advocate with a calm, measured, yet robust courtroom manner. Kevin took silk in 2019, building upon his heavyweight practice in the fields of financial crime and serious crime. Kevin is ranked in the Legal 500 in business and regulatory crime (including global investigations) new silks section (2019).