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The state of the Private Prosecution Process in the wake of the Post Office scandal

30 January 2024

The ongoing Public Inquiry in to the injustices, suffered by hundreds of postmasters and postmistresses, has caused Legal Representative bodies to call for the Government to reflect once again on the safeguards and reforms recommended by the Justice Committee in their 2020 report in to the 'State of Private Prosecutions'. 

This article was authored by Jill Brookes

The report revealed flaws in the way that some private prosecutions were being brought, and recommended clear guidelines and standards be implemented to prevent miscarriages of justice or abuse of the criminal justice system for malicious prosecutions. This was back in 2020!

The report highlights the dangers in cases instigated by organisations and individuals, who have autonomy to bring prosecutions from inception to conclusion, and do so without external scrutiny, specialist skill, knowledge and resources. There is a general lack of understanding as to what is required, not only to bring a case before the courts, but also the important ongoing obligation and responsibilities as officers of the court to continuously review cases to ensure there remains a realistic prospect of conviction and it is still in the public interest to continue to prosecute. 

Public prosecutions faced similar criticism in 2018 when rape cases collapsed as investigators failed to bring undermining evidence to the attention of the prosecutor at an early stage.  This important duty should have resulted in either no charge ensuing or, at the very least, should have been disclosed to enable the defence to prepare its case fully. These mistakes led to a review of the procedures for disclosure and the updated Director of Public Prosecutions guidance on disclosure (6th Edition) to safeguard against future failings in evidential disclosure. In turn the 'Code for Crown Prosecutors' ensures that cases face a high standard of scrutiny in the application of the Full Code Test. This means that that cases are brought before the court only when there is a realistic prospect of conviction, having assessed all evidence and any undermining material and that it is in the public interest to charge an offence.

Today, the courts are implementing 'The Revived Better Case Management Policy', which strengthens the safeguards requiring prosecutors and defence to identify the issues in a case at an early stage.  This has led to fewer hearings, reduced strain on the court system and ultimately less financial strain on the public purse and those seeking justice.

Defence lawyers are equally expected to play there part in holding prosecutions to account, ensuring cases that fall short of the high standards of the Full Code Test are referred [via the mechanisms in section 6 of the Prosecution of Offences Act] for review by the Director of Public Prosecutions. Challenging those cases and ensuring that reasonable lines of enquiry are followed enables cases to be brought fairly and impartially. 

Never before has there been so much scrutiny of the prosecution process, whether private or public. It is essential that prosecutors ensure fairness and transparency in order to prevent miscarriages of justice. It is equally important to ensure that investigators understand the scrutiny that prosecutions will face when they go through the Court process so that information and intelligence gathered during the course of an investigation, both supportive and undermining of the case, is properly considered and actioned.

DWF have a robust team of lawyers (which includes a former CPS Prosecutor) that bring a robust, coordinated and collaborative approach to taking prosecutions. The team provides advice, support and guidance to ensure only cases that pass the high standard required of the Full Code Test are brought.

Further Reading