Following the Justice Select Committee's publication of a report on "Private Prosecutions: Safeguards" in October 2020, the Government published their response in March 2021. The initial report was commissioned following well publicised issues highlighting the safety of a number of Post Office private prosecutions.
The Government state they believe strengthening the safeguards of the Private Prosecutions industry and creating a central register of such prosecutions would "go some way towards putting this right". Such a register would provide metrics on the number of private prosecutions that have been brought and by whom. The register would also provide details as to the success rate of private prosecutions.
However, perhaps the most interesting and potentially controversial part of the Government's response relates to the funding arrangements that currently exist. The Justice Select Committee had suggested that the Government review funding arrangements for private prosecutions both in order to address the inequality of the process and to ensure that there is a fair balance between the prosecutor and the defendant whilst ensuring the best use of public funds.
The Government's response sets out the following:
- We agree with the Committee that the present arrangements for funding private prosecutions are inequitable as between prosecutors and defendants, and do not always represent a cost-effective use of public money.
- We agree, in particular, that the costs recoverable from central funds by a private prosecutor should be limited in the same way that costs so recoverable by an acquitted defendant already are, by being capped at legal aid rates. This will require an amendment of the existing legislation.
- We are also minded to agree that costs recoverable by a private prosecutor from a convicted defendant should be limited, either by being capped at legal aid rates or by reference to what the CPS would have sought, but we wish to consult further on this.
- We also intend to reflect further, and if appropriate consult, on whether there should be a wider discretion to reduce or withhold payment of costs from central funds in the event of an acquittal.” On the face of it surely this view goes against the very idea of levelling the playing field? Rather than having a system that promotes access to justice for all, any new capped costs system will add credence to the idea of a two tiered criminal justice system which will only work for those that can afford it. Such a shift will simply mean that those who do not have the deepest pockets will not be able to fund such a prosecution, because regardless of the outcome, each party will seemingly be out of pocket. For the avoidance of any doubt, the difference between recoverable costs at 'legal aid' rates and the actual costs of paying your legal team on a private basis can be substantial.
This in turn could potentially have wider implications with the legal sector and to those law firms who undertake private prosecution work. If costs are only recoverable at legal aid rates, how will firms who undertake this work exclusively be able to continue in this area? That in turn could mean that those seeking representation would have less choice and could potentially then have to pay even more fees to those firms who would continue to undertake this type of work due to it becoming more exclusive and less accessible.
The Government's view is, we would suggest, certainly a cause for concern within this area and is something that we will continue to garner interest as further discussions take place. Already The Private Prosecutions Association have stated they will be writing to the Ministry of Justice seeking further details regarding the substance and timescales of the changes envisaged by the Government.
