It has been revealed that nearly £12.3m was paid out to private prosecutors from the legal aid central fund in 276 cases in 2019/20, a 34-fold increase from the £360,000 paid in 32 cases in 2014/15. Private prosecutions are brought by an individual or an entity not acting on behalf of the police or a prosecuting authority. While many private prosecutors hire external investigators, the House of Commons’ Justice Committee was warned of the dangers in cases where an organisation acts as the prosecutor, the investigator and the victim of the alleged offence in the wake of the Post Office Horizon accounting scandal when the Post Office secured 918 convictions from 1991 to 2015 against its workers for fraud and similar offences.
The Justice Committee published a report on Friday recommending a series of additional safeguards to ensure the fairness of private prosecutions at the request of the Criminal Cases Review Commission (CCRC) following its referral of 47 of the Post Office Horizon cases for appeal; 44 of which the Post Office has since decided not to oppose. Although there is no official data on this, submissions to the Committee indicated that there has been a sharp increase in the number of private prosecutions in recent years.
The report emphasised that while private prosecution is a constitutional right which safeguards against authorities’ inaction, the high cost of private prosecutions means that they are mostly pursued by large organisations and unsuited to individuals. In addition, without a cap on recoverable costs, they cost the taxpayer more than public prosecutions. The Committee concluded that this risks allowing the pursuit of financial crimes against large corporations at the expense of the public authorities’ ability to pursue similar crimes committed against ordinary citizens. In some cases, the Committee heard, this costs regime has even led organisations to pursue private prosecutions instead of civil actions.
‘The power to prosecute individuals, and potentially deprive them of their liberty, is an onerous power which must be treated with the utmost seriousness,’ said chair of the Justice Committee, Sir Robert Neill. ‘… the Post Office cases show the potential danger of the power to prosecute being misused. If the number of such cases continues to grow the government will need to ensure that there are systems in place which make such private prosecutions comply with the highest possible standards.’
Neil Hudgell, of Hudgell Solicitor which represents a group of the sub-postmasters, said the Post Office’s decision not to contest the cases a ‘landmark moment’. It means all will have their convictions – many which have been against their name for a decade or longer – quashed at the Court of Appeal, he explained. ‘For the Post Office to concede defeat and not oppose these cases is a landmark moment, not only for these individuals, but in time, potentially hundreds of others. The door to justice has been opened,’ he said. ‘We have secured what amounts to a clear admission from the Post Office that people were convicted of crimes on the basis of unsafe and unreliable evidence. That is truly significant and we’ll now fight for every other unsafe conviction to be overturned, buoyed by today’s Post Office back down.’
Hudgell said many of the people he represents were placed under ‘significant duress’ by the Post Office when accounting shortfalls could not be explained. ‘People were forced into admitting to crimes they had not committed simply because they were told this computer system was infallible,’ he said. ‘They were basically told they’d likely face prison if they continued to plead innocence as they’d be found guilty in court. They were told that they’d be better placed to effectively make up a story as to where the money went.’
The Justice Committee’s recommendations include:
Establishing a central register of all private prosecutions.
Setting evidential and legal standards equivalent to those met by public prosecutions and imposing sanctions if private prosecutors do not meet them.
For defendants who are privately prosecuted to be informed of their right to seek a review by the CPS.
A review of funding arrangements for private prosecutions and that defendants should not be made to pay more than if they had been prosecuted by the CPS.
The CPS argued that defendants’ right to seek a review is analogous to mandatory referral of all private prosecutions to the CPS, a role for which it does not have sufficient resources. Nevertheless, the Committee insisted that this measure, or another suitable alternative, is needed to ensure that the public interest does not become secondary to the pursuit of private interests.