Last month private prosecutions became front page news around the world when proceedings were brought against Boris Johnson, the likely next British prime minister, over claims that he lied during the 2016 Brexit referendum.
While this attempt was ultimately thrown out by the High Court (for reasons not yet made public), private prosecutions have begun to play a key role in England and Wales’s legal system and are increasingly popular in relation to fraud and offenses connected to financial crime.
As a result, private prosecutions have gone from an interesting footnote to a critical area of English criminal law for white-collar crime practitioners.
How do they work?
Private prosecutions begin when a magistrate issues a summons or warrant, following the “laying on information” by the private prosecutor (a summary of the case). Generally a magistrate will issue a summons or warrant if information has been properly laid, unless there are compelling reasons not to e.g. if an application is filed out of time, if the court does not have jurisdiction, or if the prosecution is vexatious or malicious.
Private prosecutions (as opposed to public prosecutions) are those started by private individuals or entities not acting on behalf of the police or any other enforcement or prosecuting authority. The right to bring them is long-established and contained in 6(1) of the Prosecution of Offences Act (POA) 1985.
As regards scope, private prosecutions can be used for any offense, including fraud, and Proceeds of Crime Act 2002 offenses. Given the serious nature of such proceedings, they are not a “free for all” and important safeguards apply.
First, when acting on its own, the main state prosecutor, the Crown Prosecution Service (CPS), can only bring a prosecution if a case passes both stages of the Code for Crown Prosecutors Full Code Test: the evidential stage and public interest stage. Private prosecutors are not formally obliged to apply the Full Code Test, but it is best practice if they do not want their action discontinued and so they need to consider whether there is sufficient evidence to provide a realistic prospect of conviction, and whether a prosecution is required in the public interest.
Second, private prosecutors are subject to obligations to act as ministers of justice. In other words, English solicitors conducting private prosecutions must maintain high standards of integrity and act as proponents of justice as opposed to commercial advocates of their instructing clients.
Opportunities and Pitfalls
The benefits to bringing private prosecutions are numerous: they can be brought to court faster than many civil proceedings or police investigated criminal matters, they allow an individual or firm to take control of cases, and the potential criminal punishments are often severe and therefore a strong deterrent to further wrong-doing.
However acting as a private prosecutor means that any fine is paid to the State (not to the complainant) and there are significant hurdles to a successful case including but not limited to the following:
- The Director of Public Prosecutions (DPP) can take over proceedings at any stage, and decide to discontinue the prosecution;
- Proceedings can be challenged by defendants on several grounds, including for abuse of process, commonly on the basis that a prosecution is driven primarily by an improper motive or is being conducted unfairly; and
- Disclosure obligations are more onerous than civil proceedings and need to be under continual review.
Finally, legal privilege also needs to be carefully considered throughout the private prosecution process in order to comply with the disclosure regime pursuant to Part I of the Criminal Procedure and Investigations Act 1996, where even documents that attract legal professional privilege must be disclosed if they meet the test for disclosure (unless public interest immunity can be asserted).
All of the above issues, however, can be navigated and mitigated with the right experienced legal team and in relation to costs there is some better news: generally the private prosecutor will be able to recover reasonable costs of the prosecution from Central Funds, even when the defendant is acquitted (section 17 of the POA 1985).
As a result, we will see the growth in private prosecutions continue in 2019 and into the 2020s — they simply cannot be ignored anymore in relation to any English financial crime related issues.
Sam Tate, pictured above right, is a partner and Head of Financial Crime at Reynolds, Porter Chamberlain LLP based in London. He is a co-author of a leading UK anti-corruption compliance text book “Bribery: a Compliance Handbook” published by Bloomsbury. He can be contacted here.
Charlotte Thompson, above left, is an associate at Reynolds, Porter Chamberlain LLP. Before joining RPC, She worked at the Financial Conduct Authority in the Enforcement team. She can be contacted here.