The Bar Council has called on the government to introduce a mandatory code of practice which should be monitored by an inspectorate for all private prosecutors.
In its submission to the consultation on the oversight and regulation of private prosecutors in the criminal justice system, the Bar Council pointed out that the fairness of criminal proceedings should not depend on who brings them.
The Bar’s representative body argued that all prosecutors should have to follow the same standards to avoid any advantage or disadvantage to defendants.
The Bar Council has proposed a mandatory code of practice which would apply to all private prosecutors and ensure those deciding whether to start the prosecution and those carrying it out are separate.
This code would be monitored by an inspectorate with the Bar Council pointing out that private prosecutors assessing their own performance would be insufficient, adding: “The Post Office would likely have assessed its performance positively even during the height of its Horizon-related failures.”
In its submission, the Bar Council has also called for reform of the “conveyor belt” Single Justice Procedure (SJP), arguing that speed has replaced just decision making in its use.
The SJP in its current form does not allow an affected person to flag that there is no public interest, and the submission points to several instances reported in the press highlighting that mitigation appeared to have been ignored.
The submission cites one reported case where a woman being treated for breast cancer was prosecuted via SJP for failing to renew her car insurance when the car was off the road and she was in and out of hospital undergoing chemotherapy.
Instead, the Bar Council recommends that SJP cases should be screened by a lawyer/clerk first to understand a defendant’s personal situation (mitigating circumstances) and then assess whether the prosecution should proceed and is in the public interest.
Bar Council Vice Chair Kirsty Brimelow KC said: “Private prosecutions and the Single Justice Procedure have led to miscarriages of justice which have destroyed lives and shaken public confidence in the criminal justice system. A mandatory code of practice and inspectorate would ensure the power to prosecute is not abused. The Single Justice Procedure needs to change as it enables injustice. Prosecutions should be screened by a lawyer (magistrates’ clerk) to return to prosecutors to reconsider public interest in prosecuting.
“The CPS itself was created to remove the decision on whether to prosecute for more serious crimes from the police, to separate the decision to prosecute from those invested in the investigation. It is only right that fair trial guarantees, which apply to criminal proceedings brought by the CPS, should be equally available to defendants who are prosecuted by private prosecutors.”
The Bar Council recommends that a mandatory code of practice should require all private prosecutors to:
- have a separation of functions between the investigator and prosecutor
- have a separation of functions between those deciding whether to start the prosecution and those carrying out the prosecution
- consider whether there is enough evidence to secure a conviction
- review the public interest test before starting a prosecution and keeping this under review
The Bar Council recommends that Single Justice Procedure prosecutors should:
- engage with the person before starting a prosecution
- send repeat notifications
- decide whether it is in the public interest to prosecute by considering the person’s personal circumstances
- consider the appropriateness of pursuing costs
- a further costs guideline should be issued for SJP cases