A code for private prosecutors

Private prosecutors have an obligation to act as ministers of justice; they must act impartially and comply with onerous disclosure obligations. However, private prosecutions give rise to issues and challenges that differ from those in public prosecutions. Whilst various legislation, codes and guidance govern the conduct of a public prosecutor, these are not always mandatory for private prosecutors and/or may not be adequate or effective in the context of a private prosecution. The PPA has therefore drafted a Code for Private Prosecutors to identify best practice for private prosecutors.

A key issue that is not accounted for in legislation, codes or guidance for public prosecutors is how to manage issues arising from the client-lawyer relationship. Such a relationship exists in many private prosecutions and can give rise to unique issues around potential conflict of interest for lawyers caught between the obligation to act as a minister of justice, whilst also acting in accordance with their client’s instructions. Disclosure obligations that apply to public prosecutors have significant lacunas in the context of private prosecutions, particularly when considering how to deal with material that is subject to legal professional privilege. Disclosure protocols require adaptation to have application in the context of a private prosecution, for example when determining roles and responsibilities. Difficult issues can also arise where there are concurrent criminal and civil proceedings, which necessitate a careful segregation of processes by the private prosecutor, having regard to how material has been obtained; how it can be utilised; and considering the impact of settlement on any private prosecution, amongst other things.

The PPA was founded with a view to sharing and promulgating best practice amongst private prosecutors. Many within the organisation have experienced questionable conduct and the misconduct case brought against a barrister last year for failing to advise his client appropriately in relation to bringing a private prosecution is indicative of the nature of the issues that can arise. Brought properly, criminal proceedings can achieve justice for victims and can give them some form of closure. But, to ensure the integrity of the criminal process for both victims and defendants, it is crucial that proceedings are not brought improperly; that those intending to bring private prosecutions are properly advised; and that their cases are conducted in a manner that is not abusive. Poor conduct can result in significant injustice for those involved in proceedings, whether victim or defendant, as well as unnecessary costs and wasting precious court time.

The PPA’s aim in creating the Code for Private Prosecutors is to provide a benchmark for good conduct in the context of private prosecutions. PPA members will need to confirm that they will abide by the Code once it is finalised and it is hoped that others will also have regard to it.

The PPA identified twelve areas of practice where it was thought a Code may be beneficial. A Steering Committee of members was set up with a sub-working group for each of these areas, which subsequently formed the twelve chapters of the Draft Code. Drawing upon its membership, the PPA was fortunate to have significant input from individuals with a wealth of experience from a variety of legal, accounting and investigative backgrounds. The PPA hopes that this will have helped to create a Code for Private Prosecutors that will have value for all those who practice in this field.

As one may expect, the process has involved extensive discussion and negotiation about issues that are not always clear-cut and in relation to which individuals and organisations hold a range of disparate views. Some of these topics are covered by specific questions in the consultation process, for example:

• Whether private prosecutors must pursue all reasonable lines of inquiry, whether they point towards or away from the suspect, as the Criminal Procedures and Investigations Act 1996 mandates for those public prosecutors obliged to adhere to it;
• Whether an adverse inference can be drawn where a suspect questioned by a private prosecutor under caution fails to provide answers that s/he later relies upon in her/his defence;
• Whether LPP material should be listed on a disclosure schedule and, if so, whether it should be listed as sensitive or non-sensitive material;
• Whether at the end of an investigation, a private prosecutor should consider whether there is merit in referring the case to a public prosecutor;
• Whether, as a matter of best practice, a private prosecutor should always ensure that the Full Code Test is met before seeking to institute a private prosecution, or if there are circumstances in which this might not be necessary, for example where court powers are necessary to obtain some information that may enable the Full Code Test to be met;
• The extent to which it is appropriate for private prosecutions to be used as leverage in civil proceedings, providing it is not the sole motivation for bringing them;
• Whether, and in what circumstances, it is appropriate for a private prosecutor to terminate criminal proceedings on the basis that the accused settles civil proceedings and/or compensates the victim.

We hope that the consultation will help to facilitate proper scrutiny of the ethical issues unique to this type of prosecution. Our aim is that the resulting Code will provide meaningful guidance to expert practitioners and establish a set of principles for the conduct of private prosecutions, which can be relied upon by complainants, defendants and the courts.

The consultation will close on 6 March 2019. The PPA invites responses from anyone with an interest in private prosecutions. To submit a response, go to https://private-prosecutions.com/consultation-questions/ .

Hannah Laming is chair of the PPA and a partner at Peters & Peters