Kevin Dent QC, 5SAH and Jeremy Asher, MSB Solicitors discuss the impact of Covid-19 on the role of private prosecutions. Their article also features in Counsel Magazine and can be viewed in full here.

Even when the UK emerges from the current pandemic, public prosecutors are, to say the least, going to face challenges on multiple fronts.

Despite endless debate, no workable plan has yet emerged for the wholesale resumption of jury trials. Consequently, there is likely to be a considerable log jam of cases waiting to be tried, as and when the courts get back to, something approaching, normal. This all means that it is likely to be a long time before many new criminal cases, even serious ones, are likely to be tried in the courts.

To add to these pressures, the signs are that some forms of crime, such as online fraud, are actually on the up during lockdown; organised criminals are bound to adapt their methods at a time when actual physical interaction in society is restricted.

We are all learning that the wheels of justice need to keep turning, else the whole mechanism comes to a grinding halt, putting the rule of law under severe strain.

The Crown Prosecution Service are, perhaps inevitably, re-examining their priorities in the wake of these challenges, with their new Coronavirus: Interim CPS Case Review Guidance and Interim CPS Charging Protocol. It all means that a certain category of serious, but non-urgent, cases are likely to be put under a long and slow back burner, if ever allowed to cook at all. Decisions on charge in new cases such as these may be some distant way over the horizon.

This will undoubtedly be bad news for some victims, particularly individuals or companies who have been defrauded. Unless they fit within the definition of ‘vulnerable’ victims, they are likely to go to the back of a very long queue. Such losses from fraud may well be in addition to economic damage caused by the Coronavirus quarantine itself, compounding the harm caused.

But it doesn’t have to be this way. Given the increasing robustness of the private prosecution sector, this presents the opportunity for private prosecutions to fill what will otherwise add up to a significant deficit in justice. This private prosecution sector may, though, have to adapt in order to play the proper and full role required of it.

Public prosecution re-alignment of priorities

The Crown Prosecution Service published Coronavirus: Interim CPS Case Review Guidance–Application of the Public Interest Covid-19 on 14 April 2020, setting out guidance for use by prosecutors during the Coronavirus pandemic. It begins by looking at the impact of the pandemic on the criminal justice system, acknowledging that it presents an unprecedented challenge for it and already having a significant impact on case progression. Probably accurately, it states:

“The crisis will have a long-term impact on the Criminal Justice System, particularly in relation to the expanding pipeline of cases waiting to be heard.”

The guidance directs prosecutors to consider whether, in the context of the pandemic, prosecution is a proportionate response and asks prosecutors to note:

  • The crisis is producing an expanding pipeline of cases waiting to be heard.
  • Criminal proceedings and case progression are likely to be delayed. Significant delay may impact adversely on victims, witnesses and defendants, in some cases, may reduce the likelihood of a conviction.
  • Each case that is introduced into the system, or kept in the system, will contribute to the expanding pipeline and delay.

The guidance says that these factors must be weighed up with other public interest factors when considering whether prosecution, or continuing prosecution, is a proportionate response. Thus, under the guidance, certain cases that may otherwise have been prosecuted may now not be. Certainly, a public prosecutor will have reason to think twice before charging certain offences.

The guidance also says that prosecutors must review live cases to see whether, in the light of the pandemic, there remains public interest in continuing the prosecution. It suggests that in some live cases prosecutors may decide to discontinue proceedings, offer no evidence, offer out of court disposals or accept lesser pleas. For better or for worse, some existing cases may be culled.

The CPS guidance also considers the potential impact of the virus on witnesses and states that prosecutors should actively seek to determine whether; the witnesses still support the prosecution and will attend court, if support is required to secure their attendance or if a witness summons is required. Alas, it is only too easy to see the impact that the virus will have on many witnesses, particularly those who are vulnerable and/or frail.

Overall, the guidance suggests an atmosphere in which public prosecutors will at least adopt a note of caution before embarking on new cases.

Interim CPS Charging Protocol-Covid 19 Crisis Response

In addition, in conjunction with the National Police Chiefs Council, the CPS recently agreed a new charging protocol indicating that certain types of case will have priority over others for charging decisions. Having outlined the scale of the impact of the virus on the criminal justice system, it states:

“It follows that there must be careful consideration of what new offences are fed into the system and how those offences are progressed…”

The protocol identifies three categories of cases (A-C) with a pecking order for decisions on charge. As might be expected, Category A cases calling for immediate charging decisions include homicides, high risk domestic abuse and serious violence. It also includes Covid-19 dishonesty offences against vulnerable victims and Covid-19 related fraud, presumably fraudsters abusing the current extra vulnerability of the elderly and frail for financial gain, like pretend supermarket delivery companies.

Category B cases are the serious non-custody cases and the protocol includes an extended timetable for their progression, including serious offences of dishonesty with identifiable victims.

The real issue, however, is with Category C cases which although serious may be deemed non-urgent. They include serious fraud, which the protocol states are “likely to clog up the court system if charged and actioned at this stage” and large serious organised crime investigations. In both instances, the protocol states that suspects should generally be released under investigation or interviewed as volunteers.

Rightly or wrongly, the guidance and protocol indicate that there will be certain types of offences that will be lower down the list of priorities for public prosecutors and may, in reality, never see the light of day as public prosecutions. Frauds against companies or frauds against individuals, where not identified as part of a wider fraud on multiple victims, may be particularly vulnerable for the chop.

This is where private prosecutions may play a valuable role in the post-Covid-19 legal world.

Private prosecutions, a way forward?

So, what ability does the private sector have to take up the slack from state prosecutors, and what are the funding options available?  How are private prosecutions likely to be affected by the new protocols? Private prosecutions are, of course, not a new thing - in fact those living in England and Wales are fortunate to have the concept enshrined in the Prosecution of Offenders Act 1984. 

Increasing robustness and capacity

Private prosecutors are growing in stature, capacity and responsibility, increasingly operating at levels of standards equal to or above state prosecutions.

The recent Code for Private Prosecutors (introduced by the Private Prosecutors Association) solidifies best practice in this field and has added a level of robustness and accountability to the arena, setting out that advocates and solicitors who have conduct of private prosecutions must observe the highest standards of integrity. The Code stipulates for prosecutions that are, at least, state-standard but brought independently of the public prosecutions sector.

This bolstering of standards in private prosecutions makes the sector well placed to fill the justice gap that will emerge post-Covid-19. Many corporates and individuals may feel that this extra maturity will provide additional confidence when approaching private prosecutors, at a time when public prosecutors are unable or unwilling to assist.

Equally, the courts may now become more accustomed to viewing private prosecutions as a necessary adjunct to a criminal justice system in crisis rather than, as may have sometimes been the case previously, a remedy of last resort for those without a proper case.

The importance of expertise and case preparation

Private prosecutions have developed into a specialist area with a pool of solicitors and barristers with the required expertise, particularly in handling issues relating to disclosure, LPP and costs.

Likewise, there are many former state accredited financial investigators and forensic accountants available in the private sector - the Metropolitan Police recently announced it has lost 70% of its resources in these areas over the years. 

As anyone experienced in advising on private prosecutions will tell you, the biggest hurdle faced is getting cases off the ground, requiring focused preparation.  The High Court set out very specific rules when considering the Boris Johnson case [2019] EWHC 1709 (Admin) last year, indicating essentially that cases have to be fully prepared for Court by the time an application for summons is made. The advantage of this is that private prosecutions are, necessarily, well prepared at an early stage.

Given the increased level of expertise in this field, private prosecutions allow for speedy investigations, utilising dedicated teams, that are not often available in the state sector. 

This difference in the speediness of response as between private and public prosecutions is likely to become exacerbated in the post-Covid-19 landscape, making private prosecutions not just more attractive but, in some circumstances, vital for victims seeking redress within a reasonable, or endurable, timescale.

The ability of private prosecutors to respond quickly is also important when it comes to securing and preserving the necessary evidence of offences; fraudsters and organised criminals are adept at hiding their trail and moving on to different entities. Sometimes, if immediate steps are not taken, the required evidence and suspects can simply vanish.

Recovery-central approach

The premise of bringing a private prosecution must always be to right a criminal wrong through securing a conviction rather than seeking to recover a debt or other claim.  However, there may be circumstances where it might not be in the interests of justice to continue with a case if, for instance, settlement is achieved to the satisfaction of the private prosecutor.  Indeed, for those defrauded, financial recovery is often an important factor in bringing proceedings. Private prosecutions bring a particular emphasis or focus on financial recovery, not unwelcome to many prospective clients.

New funding models

One of the traditional challenges faced by private prosecutors is cost; private prosecutions have long been regarded as the preserve of the wealthy.  New and innovative models of funding, however, are increasing the availability of private prosecutions.  

Crowdfunding, such as through Crowd Justice, is one such model and particularly appropriate for some of the smaller cases. Another benefit of crowdfunding is that where proceedings widely sponsored through different members of the public, this is likely to assist in countering any argument that the case is not in the public interest.  

Funding through a new insurance backed model is also now available in certain circumstances. Specialist teams of insurance experts have developed a ground-breaking funding solution for both commercial and individual clients wishing to bring private prosecutions. Such a model of funding requires the client to agree to pay over a low and ethical percentage of the reward of a successful prosecution, but, by way of comparison, at significantly lower rates than traditionally available within the third-party funded commercial litigation space.  

These alternative funding options have at least the potential to significantly increase the ability of private prosecutions to play a more prominent role as society seeks to find a way through the inevitable justice gap that will emerge in the post-Covid 19 landscape.

None of the above in any way seeks to disparage the efforts of public prosecutors, who invariably work incredibly hard and with limited resources, but in the times to come, a strong private prosecutions sector will be required to play its full part in order to keep the cogs of justice turning.

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. For more than a decade, Kevin has been leading in cases of serious fraud and money laundering and has significant Private Prosecutions experience.  

Jeremy Asher is a regulatory specialist with 21 years’ experience of dealing with serious and high profile cases. He leads MSB’s Private Prosecutions team, having formerly developed and led a top 100 national law firm’s fraud and business crime department, which was top-ranked by Legal500 for the previous five years.