Following on from our private prosecutions seminar on 25.09.2019 - Georgia Beatty provides us with the key learning points from the event
On 25 September 2019, 5SAH hosted a practical seminar on private prosecutions, focusing on the procedures to be followed when pursuing a private prosecution and the challenges that private prosecutors may encounter. The panel was comprised of members of chambers with particular expertise in this field, and was chaired by Andrew Bird. The seminar covered all stages and aspects of the private prosecution process, from issuing a summons to applying for confiscation orders.
Laying an information/issuing a summons
John McNamara began the seminar on the process of laying an information and issuing a summons. Before issuing a summons in a private prosecution the court must undertake a ‘rigorous analysis’ of the facts put before it. John noted that this test has always been a high standard, and pointed to the recent private prosecution brought against Boris Johnson as an example of this.
Discussions began in relation to the ‘duty of candour’ that compels private prosecutors to provide the court with full and frank disclosure, and in particular the impact that a failure to comply with the duty of candour could have on a potential prosecution. Where a private prosecutor is found to have withheld relevant information from the court, the defendant can apply to have the summons dismissed or stayed on the basis that it was an abuse of process to issue it at all.
Key learning point: When applying for a summons, private prosecutors should prepare for the court to employ a high level of scrutiny. Full and frank disclosure is of paramount importance.
In this section Jonathan Benton, Director of Intelligent Sanctuary, explored the role of the investigator in private prosecutions with a particular emphasis on the use of technology. He noted that the private prosecution space provides opportunities to investigate privately, and therefore make use of more advanced (and more expensive) technology than would be available for investigations conducted by the state.
However, Jonathan also noted that private investigation remains an unregulated field, and discussed some of the potential pitfalls that a private investigator can fall into; for example, some of the surveillance powers available to public bodies under the Regulation of Investigatory Powers Act 2000 are not lawful when carried out by private investigators. Private prosecutors will need to ensure that investigations are conducted in accordance with the law to prevent potential abuse of process arguments being raised later on in the proceedings.
Key learning point: Private prosecution allows for investigative opportunities that may not be possible in state prosecutions, if the funds are available. However, prosecutors must be careful about the provenance of any information obtained in the course of a private investigation.
Obtaining information and evidence
Having discussed the role of private investigators, Andrew Bird then addressed the topic of what lawyers can do to obtain evidence and information in private prosecutions. He noted that very valuable evidence can be obtained from public sources, such as the Registrar of Births, Marriages and Deaths, the Land Registry and Companies House. In addition to open source information, private prosecutors can consider making use of material from any previous civil proceedings (which may require making an application to the civil court) or enlisting the help of the police and other authorities.
Andrew also discussed how private prosecutors can obtain various types of court order to access the information they require. Before the commencement of proceedings private prosecutors are entitled to apply for a Norwich Pharmacal Order, although careful thought should be given to whether such an order is appropriate. After proceedings have commenced, private prosecutors can acquire information by applying for orders under the Bankers Books Evidence Act 1879, obtaining witness summonses, or even simply asking the judge to order disclosure.
Key learning point: In addition to hiring investigators, private prosecutors should access the wealth of information available to them through public and official sources, and can also make use of court orders where appropriate.
Once the investigations have concluded and the evidence has been obtained, a private prosecutor will then need to embark on the disclosure process, just as a public prosecutor would. Edmund Burge QC set out the statutory disclosure regime under the Criminal Procedure and Investigations Act 1996, which is binding on both state and private prosecutors, and also outlined various sources of guidance such as the Attorney General’s Guidelines on Disclosure and the CPS Disclosure Manual.
Edmund then addressed certain difficulties that private prosecutors may encounter in the disclosure process. Firstly, private prosecutors should be advised that disclosure can be a very expensive process, and that their ability to bring the case to trial may be jeopardised if they are not able properly to discharge their disclosure obligations. Secondly, private prosecutors may encounter far greater resistance to requests for disclosable material from third parties than the police normally would.
Finally, Edmund discussed how legal professional privilege (LPP) and public interest immunity (PII) operate in the context of private prosecutions, noting in particular that the general application of the LPP doctrine is subservient to the private prosecutor’s disclosure obligations.
Key learning point: The disclosure regime applicable to public prosecutions applies equally to private prosecutions.
Code for Private Prosecutors
Alexandra Davey analysed the new Code for Private Prosecutors, published in July of this year. Her presentation focused on the sections of the code dealing with client care. She noted that the Code gives private prosecutors a tangible document to refer to when explaining issues such as disclosure obligations, waiver of privilege and ethical standards to their clients. The Code aims to set a gold standard for private prosecutions and to facilitate greater scrutiny over how private prosecutions are conducted.
Alexandra also discussed certain areas where the Code is lacking in detail or unclear. In particular, Alexandra referred to Chapter 7 of the Code, which concerns abuse of process. The Code does little to clarify what exactly amounts to an improper motive or a malicious prosecution; this remains a key issue that the courts will have to determine in future. She further noted that the Code is not presently binding on private prosecutors, and raised the question of whether a private prosecutor would need to withdraw if specifically instructed to act against the provisions of the Code, but otherwise in accordance with the general Code of Conduct and the CPIA.
Key learning point: The Code is a helpful step towards regulation of private prosecutions, but it is a very new document and its effectiveness remains to be seen.
The seminar thus far had established two key themes: firstly that private prosecutions can be expensive, and secondly that private prosecutors must act as ministers of justice with the highest standards of integrity. Benjamin Burge discussed how both of these themes tie in to the issue of costs. He discussed the mechanisms under sections 17 and 18 of the Prosecution of Offences Act 1985 that allow private prosecutors to recover their reasonable costs either from public funds or from a convicted defendant.
However, section 19 of the Act allows defendants to recover financial loss incurred as a result of unnecessary or improper acts or omissions by a private prosecutor. Benjamin noted that section 19 does not intend to shut down private prosecutions, but rather aims to ensure that the benchmark of integrity remains at a high standard through the threat of costs sanctions. Therefore, private prosecutors should be advised that there is a significant costs risk for any misconduct; not only will the prosecutor have to bear their own costs, they may have to bear defence costs as well.
Key learning point: The checks and balances in place between the costs provisions of the Prosecution of Offences Act encourage private prosecutions to take place, but also ensure that defence costs can be recovered in certain circumstances.
Restraint and Confiscation
Sarah Wood explained how restraint orders and confiscation orders under the Proceeds of Crime Act 2002 operate in the context of private prosecutions. Dealing firstly with restraint orders, she noted that private prosecutors may have difficulty securing a restraint order before charge, due to the need to prove that there is a duty to investigate in accordance with POCA s.88(2). However, it is open to private prosecutors to apply for a restraint order once proceedings have commenced. Sarah outlined the procedure for making such an application and some practical issues to consider, including where an application is made ex-parte.
In relation to confiscation orders, Sarah noted that private prosecutors are permitted to make an application for a confiscation order but will most likely need to hire an accredited financial investigator. This can create issues of conflict, and private prosecutors will need to be careful that their agreement with the investigator does not give the appearance that the police have compromised their independence.
Key learning point: It is open to private prosecutors to apply for restraint or compensation orders, but there are certain practical challenges that will need to be considered and may incur extra expense.
International private prosecutions
The final presentation concerned private prosecutions in the international forum. Ben Keith noted that private prosecutors are able to apply for an extradition warrant, but that the process is extremely bureaucratic. For extradition within the EU, private prosecutors are able to make use of the European Arrest Warrant scheme. However, a strong case, thorough preparation and some diplomacy will be required to persuade the CPS to take up the request.
Outside of Europe, a private extradition request will require the cooperation of the Foreign and Commonwealth Office and the Home Office. Ben explained that there will be diplomatic as well as legal issues to consider, and that such requests are likely to be very expensive.
In terms of practical points to consider when making an extradition request, Ben recommended that private prosecutors consult a lawyer in the relevant jurisdiction in order to understand the extradition process from all angles. He also advised prosecutors to be aware that in certain jurisdictions, extradition requests are not always treated as confidential and sensitive information may therefore be at risk of being leaked.
Key learning point: Private extradition proceedings are possible, but can be bureaucratic and costly. Diplomatic considerations will often be as important as legal considerations.
In summary, the seminar was highly informative and equipped attendees with a comprehensive guide to the key issues to consider when practising in this growing area of law. The event also prompted some interesting discussion on how to overcome practical challenges that may be encountered in the course of a private prosecution, and also on possible future developments in law and practice.
Georgia Beatty is a barrister practising in all areas of criminal law. She both defends and prosecutes in a wide range of criminal cases. In addition to her criminal practice, Georgia has a growing practice in extradition law and has been instructed in both Part 1 and Part 2 cases. She also accepts instructions in family proceedings.