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The Code for Private Prosecutors – A new beginning?

10 September 2019
Regulatory Compliance
The recent and much published attempt by Marcus Ball to bring a private prosecution against the latest incumbent to now occupy 10 Downing Street, Boris Johnson, has resulted in a media frenzy into this still evolving area of criminal law the like of which has not been seen before. Mr Ball had sought to prosecute Mr Johnson over allegations he committed misconduct in a public office by “misleading the public” about Brexit. However the High Court quashed the summons which had been issued after the hearing the case was the "culmination of a politically driven process".

By way of definition a private prosecution is a useful and alternate means of recourse open to either an individual or a corporate who has been the victim of a crime and wishes to commence criminal proceedings themselves. The victim must have previously exhausted all other avenues open to them.

It therefore seems fitting that the Private Prosecutors Association ("PPA") which was set up in September 2017 as a membership organisation to bring together professionals with expertise in bringing private prosecutions, should now publish its first Code for Private Prosecutors ("the Code"). The intention of the Code is twofold, firstly to raise awareness for all those considering bringing a private prosecution and secondly to set out a framework of best practice for those instructed to act on their behalf. 

The PPA's wish is for the Code to be referred to by judges and used as the benchmark document in any future private prosecutions. Although voluntary, all members of the PPA have confirmed their intention to abide by its terms. 

This new Code follows a number of recent publicised failed private prosecutions where criticism had been levelled against those bringing the proceedings. This included bringing vexations proceedings or simply failing to satisfy the CPS Code of Conduct by either not having a realistic prospect of success or not being in the public interest to bring such a matter to Court. 

In addition critics have for some time pointed to a lack of regulation and independence of those parties involved in bringing private prosecutions. We have also seen an increase in “controversial” joint enquiries with the Police due to the lack of powers available for the private prosecutor. The Police have also been known to approach insurance companies to contribute to the cost of an investigation. It has also been suggested that such proceedings are, due to legal aid not being available, restricting justice to wealthy individuals and private industry and so contributing to the growth of a two tier criminal justice system.

The Code provides guidance on a number of different topics, from the initial investigation stage, to dealing with complex disclosure issues through to the policy governing the recovery of costs. What is abundantly clear from the Code is the requirement for the private prosecutor to act at all times with the highest standards of integrity and regard for their client whilst not forgetting their duties to the court to ensure proceedings are conducted fairly and justly.  

Despite the government's recent pledge to recruit 20,000 additional police officers over the next three years current police budget cuts continue to bite and our criminal justice system faces increased pressure. Indeed according to the most recent Home Office data the proportion of crimes solved by police in England and Wales has actually fallen to the lowest level recorded. 

In light of this private prosecutions are only likely to increase over the coming years as individuals and corporates turn to them as a means of recourse in order to seek justice. As such any attempt to drive up standards and increase the public's confidence in this process must surely be a positive step forward.

Should you require any further information in relation to private prosecutions then please contact Jeremy Bird (jeremy.bird@dwf.law or 0161 604 1883).

Further Reading

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