Enhancing oversight and regulation of private prosecutions in the UK

Introduction

Private prosecutions have long been a part of the UK's criminal justice system, offering an alternative route to justice when public authorities are unable or unwilling to act. Limited data is published on private prosecutions but to give an idea of scale, figures for 2023 show that 26% of all prosecutions in the Magistrates Courts were brought by private prosecutors. However, recent controversies, notably the Post Office scandal and abuse by train operating companies, have highlighted significant flaws in the current system. 

A report by the Justice Committee in 2020 emphasised the need for a proactive examination of the regulation of private prosecutions. The report acknowledged the value of such prosecutions in allowing corporate victims to seek justice when public authorities would not act but stressed that financial resources should not dictate the ability to prosecute. It called for an urgent government review of funding arrangements to ensure fairness and cost-effectiveness, suggesting measures like capping recoverable costs at legal aid rates. The report also recommended strengthening existing safeguards by establishing a central register of private prosecutions, notifying the CPS of new cases, and informing defendants of their rights to a CPS review. Additionally, it suggested that organisations conducting numerous prosecutions should be inspected and potentially stripped of their prosecutorial rights if they misused them.

Driven in part by the intense public scrutiny of the Post Office Horizon scandal, the government has finally launched a consultation based on the issues highlighted by the Justice Committee. It now proposes reforms aimed at ensuring private prosecutors adhere to consistent standards and are held accountable. 

Key Objectives

The government lists 3 aims for reform the private prosecution landscape:

Consistency of Standards and Accountability

One of the main issues which has been identified is the lack of common standards and accountability for private prosecutors. The consultation proposes several solutions:

• Binding Code of Conduct: Private prosecutors are not legally required to apply the evidential and public interest tests guiding CPS prosecutions, leading to potential system abuses. A mandatory code of conduct would set clear expectations for private prosecutors, ensuring they adhere to ethical and professional standards. In particular, this code would require the separation of investigation and prosecution functions to try to ensure independence and objectivity in prosecutorial decisions. It would also contain obligations to consider whether there is sufficient evidence against a defendant to provide a reasonable prospect of conviction and whether prosecution is in the public interest.
• Mandatory Inspections: Unlike the CPS, private prosecutors are not subject to mandatory inspections. Regular inspections would help monitor compliance with the code of conduct and identify areas for improvement.
• Accreditation System: An accreditation system would recognize private prosecutors who meet high standards, providing a benchmark for quality.
• Consequences for Non-Compliance: Clear consequences for failing to meet standards would deter misconduct and promote accountability.

Improving Safeguards in the SJP

The Single Justice Procedure (SJP) is used to deal with minor offences that do not attract a prison sentence. The cases are exclusively managed within the magistrates' court and typically result in the defendant being sentenced to pay a fine. Some private prosecutors are authorised to use the SJP and the perceived misuse of the process by train companies has raised awareness of its shortcomings but the consultation proposes several measures to address these concerns which would apply to all prosecutors:

• Engagement with Defendants: Prosecutors would be required to engage with defendants before initiating prosecution to understand their personal situation and assess whether prosecution is in the public interest.
• Review of Mitigating Circumstances: Prosecutors would be provided with access to, and would be required to review, any mitigating circumstances presented by defendants, promoting a fairer process. There is currently no opportunity for prosecutors to review any mitigation prior to a magistrate deciding the case.
• Redesign of SJP Notice: The SJP notice would be redesigned to provide clearer information to defendants, helping them understand their rights and the process.

Improving Transparency

Transparency is crucial for maintaining public confidence in the criminal justice system. The consultation proposes several measures to enhance transparency in private prosecutions:

• Public Register of Private Prosecutors: A public register would list all private prosecutors, providing transparency and accountability.
• Publication of Prosecution Data: Private prosecutors would be required to publish data on their prosecutions, allowing for greater scrutiny and analysis of trends.
• Self-Assessment and Audits: Encouraging private prosecutors to conduct self-assessments and audits would promote continuous improvement and accountability.

Commentary

Private prosecutors carry out a vital function and they encompass a broad spectrum of interests. Companies bring criminal prosecutions, and some in high volumes. By way of example, and as mentioned above, train operating companies prosecute people for fare evasion. Media companies prosecute for copyright infringement and some companies bring trademark prosecutions on behalf of individuals or organisations for a fee. Some charities bring prosecutions for offences such as theft of their fundraising monies or for offences specific to their cause, such as the RSPCA prosecuting for animal welfare offences.

The government accepts that many prosecutions are in the public interest and follow proper process. Clearly, the removal of the right to bring a private prosecution in the scenarios described above would - in light of constraints on public resources - give rise to the risk of unchecked wrongdoing and damage to UK commercial and public interests. However, the recent scandals involving a small number of prosecutors mean that reform is inevitable, and the case for safeguards is particularly strong  where the prosecutor is also the victim. 

This consultation on the oversight and regulation of private prosecutors marks a pivotal moment for the UK's criminal justice system. By addressing the current shortcomings and proposing robust reforms, the government aims to enhance the integrity and fairness of private prosecutions. However, going too far with reforms and introducing overly stringent safety measures risks making private prosecutions a less attractive option. This might in turn result in a significant reduction in the overall number of prosecutions and persons willing to bring them, leading to an unwelcome increase in the already heavy burden faced by the UK public prosecutors. This is a particularly concerning prospect given the continuing and well documented rise in fraud within the UK, where redress by private prosecutions - alongside enforcement authority action and private sector compliance reforms - could be an important part of the solution.

The consultation is open for nine weeks, closing on 8 May 2025. Legal professionals and other stakeholders are encouraged to participate and share their views to help shape the future of private prosecutions in the UK.