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Written Evidence from Chambers of Jonathan Laidlaw QC (PPS0013)

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Written Evidence from Chambers of Jonathan Laidlaw QC (PPS0013) Written evidence from Chambers of Jonathan Laidlaw QC (PPS0013) 1. On 23 June 2020, the House of Commons, Justice Committee opened an Inquiry into private prosecutions in the following terms: “This inquiry will examine whether there are sufficient safeguards in place to limit the likelihood of injustices resulting from private prosecutions brought by organisations that act as the investigator and the prosecutor but are also the victim of the alleged offence.”1 2. The Chambers of Jonathan Laidlaw QC is a leading set of barristers with significant experience in bringing, and defending against, private prosecutions. This document is our collective response to the Justice Committee’s call for written evidence. 3. In summary, our principal submission is that there is nothing inherently unfair or objectionable about a private prosecution being brought by an organisation which is the victim of an alleged offence (usually known in criminal proceedings, and henceforth a ‘complainant’) and which acts as both investigator and prosecutor. We make no comment on the Post Office prosecutions which have led to this Inquiry. However, whether or not there have, or may have, been disclosure failings in any particular privately prosecuted criminal case, the Committee should resist any temptation to condemn private prosecutions per se. Private prosecutions by organisations, properly conducted, play an important role in the administration of justice and are subject to a large number of existing safeguards to ensure fairness. 4. If there are improvements to be made in the area of private prosecutions, we suggest that the focus should be on weeding out wholly unmeritorious cases, often brought by unrepresented individuals, at an early stage in the court process. That could be achieved by the requirement for an inter partes hearing at the summons stage, by way of amendment to the Criminal Procedure Rules. 5. The response is divided into the following sections: A. The constitutional role and importance of private prosecutions B. The numerous safeguards which seek to ensure the fairness of a private prosecution C. Conclusion A. The constitutional role and importance of private prosecutions 6. The ability of a person to commence criminal proceedings is an ancient constitutional right, “part of a citizen's established right of access to the courts for the remedy of wrongs”2. 1 https://committees.parliament.uk/work/401/private-prosecutions-safeguards/ 2 Regina (on the application of Gujra) v Crown Prosecution Service [2013] 1 A.C. 484 (2012) at page 5, final paragraph, see also the speeches of Lord Wilson JSC (at paragraphs 10 to 22) and Lord Mance JSC (at paragraphs 87 to 109) for a history of the development of private prosecutions. 7. While historically, private prosecutions were the norm3, their perceived utility diminished as a result of the state acquiring conduct of most, but not all, criminal prosecutions in the 19th and 20th Centuries. 8. However, the right of a person to bring a private prosecution has expressly been preserved by Parliament4 and the courts have continued to endorse the provision and application of appropriate safeguards. 9. It is submitted that, in the 21st Century, the need for private prosecutions has increased. There are two principal reasons for this: 1. The prevalence of acquisitive criminal conduct: “Economic crime is a significant threat to the security and the prosperity of the UK … Fraud is now one of the most common crimes in the UK, with one in fifteen people falling victim a year”5; “There were an estimated 3.8 million incidents of fraud in the year ending March 2019, accounting for around one-third (34%) of all [Crime Survey for England and Wales] crime estimated in this period. This was an increase of 17% from the previous year (3.3 million incidents) and an increase of 12% from the year ending March 2017 (3.4 million incidents)”6; 2. The chronic under-resourcing of publicly funded fraud investigations and prosecutions: “[O]nly 13% of incidents of fraud are reported by the victim to either the police or to Action Fraud … [A] quarter of Action Fraud crime reports (those meeting the Home Office counting rules) are disseminated to local forces, around 14% of which receive “outcomes” … In the face of a 30% increase in demand in this area [City of London Police] experienced a 5% funding reduction in real terms over the previous three years”7; “Rarely is fraud identified as a priority in [police] forces; only a small proportion of officers are involved in fraud investigation; they lack the skills to investigate complex cases; and, there is no certainty that cases will conclude with positive outcomes … In overall terms, over twenty percent of cases disseminated by [City of London Police] conclude with a prosecution or other criminal justice outcomes … Transformational change is needed in a number of areas to bring fraud back into check and serve victims well.”8 3 Hay, ‘Controlling the English Prosecutor’ (1983) 21 Osgoode Hall LJ 165, 167–172 4 Prosecution of Offences Act 1879 and Prosecution of Offences Act 1985 5 Ministerial Foreword to the UK Economic Crime Plan, 2019 to 2022, see also Home Office Research Report, ‘The economic and social costs of crime’, Second edition, Research Report 99, July 2018, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/732110/the-economic-and-social- costs-of-crime-horr99.pdf 6 Office for National Statistics, ‘Nature of fraud and computer misuse in England and Wales: year ending March 2019’ https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/natureoffraudandcomputermisuseinenglandandwale s/yearendingmarch2019#trends-in-fraud 7 Home Affairs, Select Committee, Report ‘Policing for the Future’, 25 October 2018, https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/515/51507.htm#footnote-254 10. We recognise, of course, that private prosecutions may be commenced in relation to a great many criminal offences9, however, our submissions are focused on fraud and other acquisitive criminal conduct because, in our experience, that is where the effects of the chronic under-resourcing of publicly funded fraud investigations and prosecutions are most acutely felt. With that background, it is submitted that private prosecutors play a vital role in the administration of justice. B. The numerous safeguards which seek to ensure the fairness of a private prosecution 11. Throughout the life of any private prosecution, there are already safeguards in place from the issuing of the summons all the way through to the question of costs, to ensure the fairness of the proceedings. The Private Prosecutors’ Association 12. The Private Prosecutors’ Association (‘PPA’) is a membership organisation, of which a number of tenants in chambers are members, whose stated aim is to “recognise and promote best practice” in the field of private prosecutions. 13. The key objectives of the PPA include: Enabling those involved in bringing private prosecutions to identify, endorse and share best practice; Providing a forum for the exchange of expert views and specialist knowledge relating to private prosecutions; Identifying lacunae and limitations relevant to private prosecutions in the existing legal framework and advocate for additional rights and powers which would better enable private prosecutors to assist victims of crime; Providing complainants and the public with accurate information about private prosecutions and when they are appropriate. 14. In order to achieve those aims, the PPA published a Code for Private Prosecutors (‘the Code’) in July 2019.10 The Code provides for best practice in all aspects of an intended private prosecution, including investigation, the relevance of parallel civil proceedings, the role of the DPP, charging and commencing proceedings, disclosure, trial management, disposal in the event of conviction and costs. 15. Of particular importance, are those parts of the Code that impose a positive obligation on all those who have indicated an intention to be bound by its terms, including that: 1. Any investigation is fair and balanced and would not bring the criminal justice system into disrepute or otherwise constitute an abuse of the court’s process; 8 City of London Police, ‘Fraud: A review of the national ‘lead force’ responsibilities of the City of London Police and the effectiveness of investigations in the UK’, https://www.cityoflondon.gov.uk/about-the-city/about-us/Documents/action-fraud-report.pdf 9 Not those where: the DPP’s permission is required (the DPP having a settled policy of not giving such permission to private prosecutors); the consent of the Attorney-General is required; the powers of the Director of the Serious Fraud Office are being exercised. 10 https://private-prosecutions.com/wp-content/uploads/PPA-Code-for-Private-Prosecutors.pdf 2. Investigations by and for private prosecutors should be conducted impartially, objectively and independently; 3. The investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect; 4. The private prosecutor must ensure that in discharging its disclosure obligations it complies with the following (unless any provision cannot properly be said to apply to a private prosecution): Criminal Procedure and Investigations Act 1996 (‘CPIA’); CPIA Code of Practice; the Criminal Procedure Rules; the Attorney- General’s Guidelines on Disclosure; Judicial Protocol on the Disclosure of Unused Material in Criminal Cases; the Crown Prosecution Service (‘CPS’) Disclosure Manual; and, the obligation to disclose material before the requirements of the CPIA are triggered; 5. The private prosecutor’s approach to disclosure must be straightforward, transparent and open. There is a continuing duty on the prosecution to keep disclosure under review. The private prosecutor should be advised in advance of the trial that disclosure could be made without reference to them, either generally in the proceedings or in certain exceptional circumstances, for example, if they are giving evidence; 6. Parallel criminal and civil proceedings may be pursued so long as to do so is fair, proportionate and properly motivated.
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