Tough controls considered to regulate private prosecutors

Private prosecutions allow people to pursue justice where state prosecutors cannot, or choose not, to prosecute. However, the improper actions of some organisations have resulted in serious and often life-changing miscarriages of justice. Examples include the Post Office Horizon scandal, which saw failings in the prosecutorial practices leading to hundreds of innocent postmasters being wrongfully convicted.

Thousands of people have also been handed criminal convictions for legitimate mistakes such as unpaid bills and purchasing the wrong train ticket. This includes situations where there have been strong personal mitigating factors, meaning the cases were not pursued in the public interest.

The government is calling for views on reforms which will enable better oversight and regulation of these prosecutors to prevent such failures in the future. This builds on the government’s broader efforts to restore public confidence in policing and in the criminal justice system through its Plan for Change.

Lord Chancellor Shabana Mahmood, said

Recent catastrophic failures in private prosecutions have highlighted that our current system is open to abuse. That cannot be allowed to continue.

We will listen carefully to the feedback from this consultation and develop stronger safeguards for the public to restore confidence in our justice system.

Following proposals made by the Justice Select Committee, the consultation aims to set consistent standards and ensure accountability to improve the behaviour and practice of prosecutors.

Consultation proposals include the introduction of a mandatory code of practice, establishing an inspection regime, and putting in place a system of accreditation for private prosecutors.
To make these prosecutions more transparent, measures could also include a requirement for organisations and agencies to register with His Majesty’s Courts and Tribunals Service (HMCTS) before bringing a private prosecution, and to publish data on their prosecutions.

The consultation will also look at how the Single Justice Procedure (SJP) can be improved to ensure all cases brought are in the public interest. Suggested changes include requirements for SJP prosecutors to engage with defendants to assess their vulnerability, and to consider their personal and mitigating circumstances before pursuing a prosecution that might lead to a criminal record.

Justice Minister, Sarah Sackman KC, said

Fairness and transparency are at the heart of our justice system. However, certain organisations have been allowed to bring life-changing and unjust prosecutions affecting thousands of people, without robust checks and balances. 

It is time to hold prosecutors to account and provide oversight which protects ordinary people. We will ensure that prosecutions are always fair and in the public interest.

The consultation’s proposals will apply to all private and non-criminal justice agency prosecutors. This includes state-run agencies such as the Driver Vehicle Licensing Agency and TV Licensing, as well as companies and private organisations such as Northern Rail.

Further information

• The consultation will close on 8th May.
• Private prosecutors, as defined in the consultation, excludes those categorised as ‘criminal justice agencies’ – the Crown Prosecution Service (CPS), Serious Fraud Office (SFO), police (including British Transport Police), and the National Crime Agency (NCA). For the purposes of this consultation, all other organisations are referred to as ‘private prosecutors’. This includes public agencies that bring prosecutions as well as private or third sector bodies.
• Individuals who bring private prosecutions on their own behalf are not within the scope of the proposals discussed in the consultation.
• SJP sees a single magistrate, supported by a legally qualified adviser, try adult summary-only cases, and is important for a streamlined legal process and swift justice.
• The Office for Rail and Road is conducting a separate independent review of train operators’ revenue protection enforcement practices, including the use of prosecutions. This will report back in May and will support the consultation announced today.

The Government is consulting on the following policy options

• The introduction of a mandatory code of practice for private prosecutors, including requirements for private prosecutors to maintain separation of investigatory and prosecutorial functions, and a requirement to fully consider whether prosecutions are in the public interest.
• The introduction of mandatory inspections of private prosecutors.
• The introduction of a system of accreditation for private prosecutors.
• The introduction of additional requirements for prosecutors using the Single Justice Procedure to engage with the defendant and assess their vulnerability before commencing a prosecution.
• The introduction of a requirement for all mitigation provided to the court to be sent to prosecutors before the case is decided by a magistrate.
• The introduction of a requirement for private prosecutors to register with His Majesty’s Courts and Tribunals Service when the number of prosecutions they bring per annum reaches a specified threshold
• The introduction of a requirement for private prosecutors who bring a specified number of prosecutions per annum to publish their own data on these prosecutions.