Disclosure, confidentiality and privilege issues for private prosecutors
Produced in partnership with Lexis Nexis PSL by Mark Cotter QC and Edmund Burge QC.
Private prosecutor’s role as a Minister of Justice
A private prosecutor is required to act as a ‘Minister of Justice.’
However, a private prosecutor is also likely to fulfil the following roles within a case:
- disclosure officer
There are clear conflicts between these roles. Such conflicts may negatively impact the private prosecutors’ ultimate role as ‘Minister of Justice’. Therefore, whenever these roles, or any combination of them, are vested in a single individual or entity that conflict must be acknowledged and managed to avoid unfairness to the defendant. Those acting on both sides must be alert to this issue.
The motive(s) of a private prosecutor (actual or perceived) may extend beyond a desire for justice in relation to the subject matter of the charge. Occasionally, such ulterior motives may be the only genuine reason that the prosecution is being brought.
As a consequence of these issues, it is common for challenges to be made to the issue of the summons itself, or to the continuation of the proceedings. Such challenges are often centred around the motive and conduct of the prosecutor and/or abuse of process.
Lawyers in private practice who represent private prosecutors have a commercial interest in the commencement of a prosecution and its continuation (in stark contrast to, eg the Crown Prosecution Service (CPS)). In addition to taking instructions and providing advice, they may also fulfil the role of investigator and/or disclosure officer. They may also assist the prosecutor in making decisions in the public interest (eg acceptability of pleas, number and nature of charges). Once again, there is the potential for conflict between these tasks.
Representatives should have in place clearly recorded case management procedures for private prosecutions. These procedures should seek to operate to prevent the conflicts of interest from impacting the fairness of the investigation, proceedings and disclosure process. They should also seek to ascertain with clarity the motivation behind the prosecution to ensure that the process of the court is not being abused.
In all cases, it will be necessary to keep all the above issues under review. Independent counsel are often instructed, and this may include counsel specifically instructed to devise, oversee and review the disclosure process.
Disclosure obligations of private prosecutors
All of the above issues have the potential to impact upon the disclosure process. If a prosecutor is unable or unwilling to fulfil his disclosure obligations, then the case may be stopped as an abuse of process. The rest of this Practice Note seeks to summarise the disclosure process, in the context of private prosecutions, and to identify key issues and considerations for those acting for the prosecutor and for those instructed on behalf of the defendant.
The application of the statutory disclosure regime
The statutory disclosure regime under the Criminal Procedure and Investigations Act 1996 (CPIA 1996) applies to all prosecutors, whether state or private.
Sources of guidance for the private prosecutor
The principal sources of guidance on the CPIA 1996 disclosure regime are:
- The Attorney General’s Guidelines on Disclosure
- The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases
- Part 15 of the Criminal Procedure Rules 2020 (CrimPR), SI 2020/759, and the associated Criminal Practice Directions (see further: Disclosure in criminal proceedings—overview)
- The CPS Disclosure Manual
Much guidance is aimed at public prosecutors/investigators. For example, the CPIA Code of Practice applies only to those charged with ‘a duty’ to investigate, such as the police.
However, these sources provide essential guidance which can be adapted and applied to a private prosecution.
Chapter 4 of the Private Prosecutors’ Association Code of Conduct for Private Prosecutors (Code for Private Prosecutors) provides a summary of the principal obligations and duties which apply in this area. Additional disclosure issues are considered at paragraphs 7.5 (abuse of process), 8.4 & 8.5 (concurrent civil proceedings), and 9.3 (on-going duty).
The disclosure process
Collectively, the disclosure obligations and duties require:
- a Disclosure Management Document (DMD), consistent with the size and complexity of the disclosure task. It should set out clearly the issues in the case, what material exists, and how it is to be acquired, retained and reviewed. The DMD needs to be kept under review, and updated to reflect significant developments
- the pursuit of all reasonable lines of enquiry, and the acquisition/retention of any material that might satisfy the test for disclosure
- clear and accurate scheduling of that material, including where necessary a separate schedule of any ‘sensitive’ material which cannot be disclosed in its raw/original format
- the proper application of the disclosure test, ie the disclosure of any material which ‘might reasonably be considered capable of undermining the case for the prosecution ... or of assisting the case for the accused.’
A particular problem relates to third-parties. The Attorney General’s (AG) Guidelines (at paragraphs 53–58) state: ‘prosecutors should take reasonable steps to identify, secure and consider material held by any third party where it appears to the investigator, disclosure officer or prosecutor that (a) such material exists and (b) that it may be relevant to an issue in the case’.
However, difficulties arise where the third party fails to co-operate. Third parties may be more inclined to co-operate with a prosecuting arm of the state than with an individual/private body, particularly where the third party is itself a public agency (eg social services), or where there are concerns about confidentiality.
The AG’s Guidelines (at paragraph 57) deal with third-party refusal, noting that where the requirements of the Criminal Procedure (Attendance of Witnesses) Act 1965 (or section 97 of the Magistrates’ Courts Act 1980) are met, a witness summons may be obtained requiring the production of that material.
However, witness summons may only be directed at ‘material’ which is considered likely to be ‘material evidence’ in the proceedings—a witness summons cannot compel the provision of pure information, nor will it apply to documentary material that merely reveals a further potential line of enquiry or will be used for cross-examination as to credit.
The AG’s Guidelines do not suggest other steps beyond the witness summons procedure.
In R v Alibhai, Longmore LJ gave a summary of the obligations on prosecutors to obtain third party material, and their ability to do so.
The court found no power over and above a witness summons to compel the provision of material held by a third-party, and identified a high bar that any defendant would have to cross before the prosecution became an abuse for want of obtaining and disclosing such material. It held:
‘…even if there is the suspicion that triggers these provisions, the prosecutor is not under an absolute obligation to secure the disclosure of the material or information. He enjoys what might be described as a “margin of consideration” as to what steps he regards as appropriate in the particular case. If criticism is to be made of a failure to secure third party disclosure, it would have to be shown that the prosecutor did not act within the permissible limits afforded by the Guidelines’
Ultimately, mechanisms do not exist for a prosecutor to compel a third party to disclose material that will not form part of the evidence. Therefore, the more that the requested material can be shown potentially to form part of the evidence, the greater the prospect of obtaining it from a third party under a witness summons.
What lines of enquiry are ‘reasonable’ for a prosecutor to follow will be determined by the issues in the case rather than the private prosecutor’s resources.
Finally, a private prosecutor may exercise a choice between making proper disclosure or dropping the proceedings. A decision to drop proceedings may impact recovery of costs and so the prosecutor’s ability and willingness to facilitate proper disclosure should be ascertained at the outset.
Funding the cost of disclosure
Given the cost implications of undertaking the disclosure exercise, a potential private prosecutor will need clear advice at the outset on:
- their obligation to give full and accurate instructions about the existence and whereabouts of potentially relevant material, and giving their solicitors access to that material
- how they intend to obtain relevant material of which they are aware but that is not already in their possession
- how the material will be reviewed, scheduled and assessed for disclosure, eg:
- is the prosecutor competent to do it themselves?
- if not, who will do it for them (solicitor/counsel/paralegal)?
- how much material will there be, and how complex are the issues likely to be?
- is there digital/electronic material?
- who will ‘sign off’ on the disclosure process, and be cross-examined on it if necessary?
It will often be that the entire disclosure function will be handled by those instructed to represent the prosecutor.
It should also be borne in mind that resistance by third parties to the provision of relevant material can result in unforeseen litigation, and further legal costs.
Motive/abuse of process
The prosecutor’s motives are capable, where they are clearly vexatious or oppressive, of founding a stay for abuse of process.
The AG’s Guidelines make it clear that the duty of disclosure encompasses material that may support legal arguments such as an application to stay the proceedings as an abuse. Therefore those acting for private prosecutors must conduct any disclosure process with the issue as to their client’s motives clearly in mind.
Legal professional privilege (LPP)
A private prosecutor cannot rely on legal professional privilege (LPP) to circumvent their disclosure responsibilities.
The definition of ‘prosecution material’ to which the disclosure regime applies is at CPIA 1996, s 3(2):
‘Prosecution material is material—
which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused,’ (emphasis added).
The ‘prosecutor’ remains the prosecutor regardless of who they choose to instruct. Thus, once the client has been provided with advice, or a document summarising their instructions etc, that material is within their possession for the purposes of the CPIA 1996, and it will fall to be considered for disclosure in the usual way.
Therefore, admissions against interest that are revealed by the client to their solicitors, or instructions that either undermine the reliability of other prosecution evidence or support the case advanced by the defendant or arguments on abuse of process, are likely to meet the test for disclosure.
Pure legal advice on the merits of the prosecutor’s case, being no more than the opinion of a legal adviser, would not ordinarily fall to be disclosed. In such a case, LPP over that communication between lawyer and client would continue to apply. However, an advice on the merits which also refers to facts or assertions that satisfy the disclosure test cannot be withheld in its entirety under the doctrine of LPP. The obligation to disclose all material that satisfies the test takes precedence.
It may be that the disclosable information and its source can be extracted from the original and supplied in a separate document, thereby preserving the privilege that might apply to the other parts. Or, a redacted version might be produced, revealing only those parts that satisfy the test for disclosure. In such a case, that summary or redacted version should be listed on the non-sensitive schedule of material that is given to the defence, and a copy provided. The original (complete) document can then be placed on a schedule of ‘sensitive’ material that is not provided to the defence. In any event, the essential proposition to follow is that the defence are given the maximum disclosure consistent with the proper application of the test.
This significant modification to the usual application of LPP can give rise to the problem of private prosecutors moving from one firm to another, hoping to avoid disclosure problems caused by instructions that have given to their original firm.
However, a private prosecutor will need to understand that any failure to provide their solicitors with details of previous instructions or advice etc may have serious consequences both for them and their case. As stated above, the fact that the previous advice is unhelpful to the client may not, of itself, render it disclosable; but unless those acting for them are aware of its existence they cannot take an informed decision about it.
Public interest immunity
The grounds for seeking to withhold from the defence otherwise disclosable material on the grounds of public interest immunity (PII) are likely to be limited. Issues of PII are most frequently engaged by matters such as national security etc. These will rarely be a feature of a private prosecution. For detailed guidance on PII, see Practice Note: Public interest immunity in criminal proceedings.
Paragraph 6.15 of the CPIA Code of Practice lists the principal categories of such ‘sensitive’ material, although that list is neither exhaustive nor closed.
For PII to apply, the material needs to engage ‘an important public interest’. However, material held by Insolvency Service, liquidators, social services and organisations involved in child welfare such as the NSPCC have all previously been properly withheld on grounds of PII, particularly where that material has been either provided to the holder ‘in confidence’, or it relates to the private life of a witness—both specifically listed as categories of material capable of attracting PII.
Therefore, if a private prosecutor is in possession of material that (i) is prima facie disclosable to a defendant but (ii) falls into a category of material that engages an important public interest, in order to discharge their disclosure obligations, they must obtain the court’s consent before than can withhold it from the defence.
The fact that the prosecution is brought privately in itself is no impediment: CPIA 1996, s 3(6) provides that: ‘Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly’ (emphasis added). As noted above, these provisions of the CPIA 1996 apply equally to public and private prosecutors.
For detailed guidance on making an application for PII and the applicable principles, see Practice Note: Public interest immunity in criminal proceedings. However, in practice, the making of a PII application in a private prosecution is likely to be an extremely rare occurrence.
Referral/takeover by the Director of Public Prosecutions
In the event of a referral of the prosecution to, or a take-over by, the Director of Public Prosecutions (DPP), the private prosecutor will be asked to hand over a complete set of papers to the CPS, including the disclosure schedules, the DMD and copies of all unused material that satisfies the test for disclosure. Of course, the private prosecutor is under no obligation to do so, but failure may result in the case being adopted by the CPS and then stopped.
Material that falls to be provided to the DPP because it satisfies the disclosure test may well include material that is adverse to the private prosecutor; they may ultimately have preferred to withdraw the case themselves than have that material handed to the defence or made public. Therefore, where the DPP makes a formal request for such material (particularly at a very early stage of the proceedings, where few formal decisions about what does or does not fall to be disclosed have been taken) a thorough review of the impact that the unused material might have on the private prosecutor is advisable before any such material is handed to the CPS. In such circumstances, the private prosecutor may again prefer to withdraw the case themselves without the involvement of the CPS.