Philip Stott is a junior barrister specialising in crime, practising mainly in London and the South-East. He is Co-Chair of the Bar Council's Legal Services Committee. In this guest blog, he explores the issues surrounding private prosecutions in the wake of the Post Office scandal and how public confidence can be restored, a topic explored at our upcoming Bar Conference 2024.

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What should we do about private prosecutions?

Virtually everyone will be painfully aware of the gross miscarriages of justice arising from the Post Office’s conduct of prosecutions against sub post-masters and -mistresses. Unprecedented legislation in the form of the Post Office (Horizon System) Offences Bill is currently making its way through Parliament to try to put things right.

Although for full answers we will have to await the outcome the work of the independent public statutory inquiry into the scandal, it is clear, as the Court of Appeal has found, that there were wholly insufficient processes in place to ensure proper disclosure by the prosecution of material reasonably capable of undermining their own case: something which is a fundamental and basic duty under statute.

Many at the criminal Bar in our jurisdiction may have experienced both the good and the bad sides of private prosecutions.

Inherently, there is always likely to be at least some conflict of interest in private prosecutions – private prosecutors would simply not put themselves to the time, trouble, and cost of bringing proceedings in matters where they are truly disinterested in the outcome.

Against that however is the unavoidable fact that there is a real, and it would seem growing, gap in justice caused by the limitations on the resources of the investigating and prosecuting authorities. This is particularly so in cases of fraud and related offending where there is simply not the capacity to investigate and prosecute what can be hugely damaging crime for both individuals and companies. The Office for National Statistics suggests that there were over three million offences of fraud last year alone, over which less than one in seven were even reported to the police or Action Fraud. Of those reported, still fewer are actually ever prosecuted - the government deliberately excludes fraud from official statistics on general detection and conviction rates, because the figures are so bad, but the CPS itself reports prosecuting only around 13,500 defendants in the two-years up to March 2023.

Where an individual, or a corporate entity of some kind (whether a company in the traditional sense, or a charity such as the RSPCA, or another form of commercial organisation such the Federation Against Copyright Theft or the Premier League) sees criminality taking place which they have the resources to prosecute themselves (and which would otherwise go un-prosecuted, or under-prosecuted) there would seem to be a role for legitimate properly-conducted private prosecutions.

After all, it is not as though public prosecuting authorities never get things wrong themselves.

Not only are failures in respect of disclosure by authorities such as the CPS and the SFO sadly far too prevalent, I am just old enough to remember the scandals arising out of the conduct of prosecutions by HM Customs & Excise (as was). Very similar issues regarding systemic failures of disclosure (and a culture of secrecy so as to protect the reputation of the organisation and the integrity of concluded trials) arose within Customs as were to later arise with the Post Office.

It is of course tempting to say that the solution is simply ensuring that truly independent lawyers of the highest calibre are instructed at all times. I wouldn’t argue against that, naturally: members of my own Chambers are frequently instructed to prosecute and defend in such cases.

Fundamentally however, there is clearly a problem whereby confidence in private prosecutions needs to be restored, and the courts and the public can be assured that proper disclosure takes place every time, all the time - and that the processes of the court are never again so misused as to drag our system of justice into such disrepute.

To that end, the Private Prosecutors’ Association has promulgated a useful code of conduct for those tasked with prosecuting these cases. There may be some scope for codifying some of those sensible principles into law. Another issue is the perhaps unique historical status of the Post Office in routinely privately prosecuting its own agents, something which heightens the potential for conflict of interest.

At the Bar Conference this year on 8 June, one of the sessions is a panel discussion chaired by the former Director of Public Prosecutions (and former High Court judge) Sir David Calvert-Smith KC on ‘Reforming private prosecutions in the wake of the Post Office scandal’. The panellists, all practitioners with experience in this field, are due to discuss what could be done to repair confidence in the justice system and whether we can ensure private prosecutions serve the public interest.

I for one look forward to hearing what they will say.