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PRIVATE PROSECUTIONS: An Introduction

Private prosecution-related headlines over the past twelve months have undoubtedly been dominated by the plethora of successful appeals brought on behalf of sub-postmasters/mistresses who were wrongly privately prosecuted for alleged fraud by the Royal Mail. In April 2021, following referrals by the Criminal Cases Review Commission, the Court of Appeal quashed the convictions of 39 sub-postmasters and declared the cases, ‘an affront to the public conscience’. The issues in these cases stemmed from failures of the Royal Mail’s Horizon computer system, which provided false indications of fraud, and led some desperate postmasters to pay ‘back’ to Royal Mail thousands of pounds they were falsely accused of stealing and which they didn’t owe the company. Compounding this issue was the Royal Mail’s failure properly to investigate the Horizon system, even when it ought to have been obvious that the system was at fault, and its refusal to disclose Horizon’s suspected defects to those facing prosecution. Lord Justice Holroyde, giving the judgment of the Court, observed, "Post Office Limited’s failure of investigation and disclosure were so egregious as to make the prosecution of any of the ‘Horizon cases’ an affront to the conscience of the court’’.

Perhaps unsurprisingly, given the public furore which followed the Royal Mail debacle, the Government stepped in and conducted a formal review, through the Justice Select Committee (JSC), into private prosecution related safeguards. The JSC recommended a number of regulatory changes, including greater oversight and recording of private prosecutions, as well as a review of funding arrangements for such litigation.

Any increase in safeguards designed to protect against abuse or mismanagement of the criminal justice system is always welcome, however it ought to be noted that the JSC itself recognised that the Courts already have available to them multiple means by which to prevent prosecutorial abuse and ensure, ‘that private prosecutions are rigorously tested’. On the one hand, the obvious injustice to those wrongly prosecuted by the Royal Mail ought to be recognised and any repeat in the future must be avoided. On the other, there is a real danger of throwing the baby out with the bathwater in circumstances in which a particular private prosecutor, guilty of egregious abuse of the system (and who, it ought to be noted, elected principally to rely on their in-house legal team in place of independent lawyers), is used to tarnish an entire system which has been in place for hundreds of years, pre-dates (and has survived) the inception in 1985 of the Crown Prosecution Service (CPS) and provides a valuable backstop for victims of crime. In an era when public resources are scarce or stretched and the cost of pursuing complex wrongdoing (for example, in the area of commercial fraud) can be considerable, the value of this right is readily apparent.

On a more positive note, private prosecutions have continued to be deployed at the forefront of intellectual property-related fraud. Almost every major prosecution for copyright infringement in 2021 was brought privately by rights holders, broadcasters and/or anti-piracy organisations such as FACT, none of which were criticised judicially nor made the subject of any successful appeal. These include the first ever prosecution of a software developer, for helping to create the digital means by which others infringed copyright in broadcasts and film works, as well as landmark convictions against those who view infringing content via illicit television streaming systems. Whilst Royal Mail showed us all how not to do it, private prosecutions in complex intellectual property crime have demonstrated that private prosecutions can be both fair and effective when properly brought.

In 2019, the Private Prosecutors’ Association, recognising the need for a resource which sets out (really for the first time) how a private prosecution should be conducted, published a Code for Private Prosecutors. The Code is not a manual for how to bring a private prosecution. It is not, of course, a statute – but it does what it sets out to do: draw together important points of principle, providing a benchmark for best practice in the conduct of private prosecutions. The Code’s second edition will be published this year. It will, once again, draw on the considerable experience of its stakeholders, including Judges, practitioners, industry bodies, investigators, and academics.

What’s next on the horizon for private prosecutions? Next year will bring the largest and most complex ever prosecution concerning illicit streaming of subscription television content, in addition to a multi-million pound confiscation following a prosecution brought by the Premier League for football-broadcast related piracy. Whilst we can all expect (and welcome) greater scrutiny of private prosecutions in the wake of Royal Mail, they will continue to provide an effective prosecutorial tool, particularly with regards to esoteric/complex financially motivated crime.

Ari Alibhai and Rachna Gokani  

QEB Hollis Whiteman Chambers