Criminal courts are no playground | Feature

The number of private prosecutions brought by individuals or companies, including commercial organizations, rather than the Public Prosecution Service (CPS), has long been a contentious issue. Last year, it made headlines again: When police refused to take action against a prolific thief, Potts successfully filed a private lawsuit — the first documented shoplifting trial brought by a corporate victim. In June 2018, a fraudster was sentenced to eight years in prison after an engineering company filed a private lawsuit he had defrauded. After the alleged flagrant violation of the first lockdown rules in March 2020, Dominic Cummings faced the prospect of prosecution in particular. Recently, private prosecutions made headlines after a Manchester court ruled that an animal charity and its law firm had unfairly prosecuted dog owners and breeders.

To meet the growing demand for private prosecutions, specialist firms offer a “tailor-made” litigation service, which charges exorbitant custom fees. They are potentially attractive to individuals or companies who believe they are victims of crime, and are seen as offering greater control over the litigation process, or as a faster and more cost-effective alternative to civil litigation. Unfortunately, many see it as another way to settle scores, damage reputation, or force a settlement in civil proceedings. Although bringing a private lawsuit out of improper motive is undoubtedly an unethical and obvious violation of court procedure, malice is always difficult to prove, and even if it can be demonstrated, it is not an automatic precluder to prosecution.

Whatever the end result, just starting a criminal trial can, of course, destroy people’s lives. Therefore it should be considered very carefully before proceeding with this process. Although tests of evidence and clear public interest tests must be satisfied before the Public Prosecution Service decides to institute a public prosecution, it is very unfortunate that private prosecutors are not required by law to apply the same high standards. Perhaps this is what makes it so attractive to those who want to abuse the system in order to settle personal vendettas.

In September 2017, a group of right-minded professionals created a membership body: the Private Prosecutors’ Association (PPA). Its mission was to develop best practices among private prosecutors, raise public awareness of the use of private prosecutions and enhance the education and training of its members in this area of ​​law. Prosecution of the Public Prosecution Act is a voluntary law for private prosecutors so that the professional and ethical duties of prosecutors can be well understood.

Allowing overburdened criminal courts to become a playing field for those with pockets too deep to resolve their private disputes cannot truly serve the public interest. The introduction of a strong, enforceable law would be a necessary first step to ensuring that prosecutors recognize their overriding duty to the court, and not as ad hoc judges, acting on the instructions of the aggrieved “victim”.

PPA law, of course, is optional. Notably, it did not appear to have been universally welcomed, particularly by some “specialty” companies, resulting in an internal conflict of interest: providing objective advice to their clients on the merits of their case while simultaneously adding paid hours.

After becoming familiar with the Public Prosecution Office, the Director of Public Prosecutions has the authority to review, take over or stop the Public Prosecution at any stage: either in the public interest or in the event that the case does not meet the required basic evidentiary criteria. to establish the Public Prosecution Office.

Although this power serves as an invaluable safeguard for defendants, it should be wrong in principle for trials that are demonstrably weak to enter the criminal justice system through a private backdoor. By contrast, when the CPS is in the driver’s seat, cases with weak or insufficient evidence are eliminated, and pre-charged.

In a private case with poor evidence, defendants have to rely on an appeal to the Public Prosecution Service to step in and do the right thing, as the burden ultimately rests with the taxpayer. This adds to the cost of legal aid money used in private prosecutions, which increased from £360,000 in respect of 32 awards in 2014-2015 to £12.28m covering 276 awards in 2019-20, according to Department of Justice figures.

Unlike private prosecution firms, the Public Prosecution Office has no direct financial interest in the cases they bring. Nor do they have the same customer relationship that the affected victim has with these companies, giving them instructions and paying for the privilege.

Statements of lofty principles are often cited by private prosecutors, which suggest that private prosecutions play an important role in the justice system in England and Wales. Inevitably, there are cases where real cases are not addressed by the prosecution system. To remedy these errors, private trial should remain a last resort. However, all too often, private prosecutors seek to prosecute in private as a first resort, having not reported the case to the police or prosecutors for consideration.

Advocates of private prosecutions often argue that they exempt taxpayers from the costs of investigation and prosecution. But as explained above, prosecutors increasingly receive their costs from public funds — even if the prosecution never brought the case, the case collapsed before trial, or the defendants were acquitted. It is hard to accept any justification for taxpayers to bill for prosecution that the state would not have provided in the first place. Such a lawsuit may be brought by a person who has enough money to pay for it himself, who, unlike the taxpayer, does not have to pay the bill if he is judged to be costly.

To avoid conflicts of interest, ‘no profit, no fee’ arrangements are not permitted in criminal cases in the UK, however such arrangements for private trials are publicly advertised online. Defense against private prosecution, which is brought without proper disclosure, is dangerous and ultimately detrimental to the rule of law.

Maria Theodolo is Partner at Stokoe Partnership Solicitors, London

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