Private Prosecutions Parliamentary Inquiry – Our View

July 2, 2020

A Parliamentary Inquiry, ‘Private prosecutions: safeguards’, has been launched to examine whether there are enough safeguards in place to prevent miscarriages of justice in private prosecutions.

Damian Nolan is a member of Exchange Chambers’ dedicated team specialising in private prosecutions. Commenting on the Inquiry, he said:

“The main driver behind this referral has been the unmitigated disaster surrounding the prosecution of so many sub-postmasters and postmistresses.

“The Prosecution of Offences Act 1985 means that any individual or company has the right to bring a private prosecution. However, by its very nature a private prosecution carries an inherent risk of procedural unfairness because the prosecutor, usually also the alleged victim, will almost by definition have a vested interest in the outcome of the case.  This has been seen most acutely in the Post Office/Horizon cases – already 47 cases have been referred to the Court of Appeal and it is likely that many more will follow. There is an obvious concern that such a personal interest may affect the prosecutor’s ability to exercise the essential objective judgment including the steps required to pursue all reasonable lines of inquiry, including ones that may even point away from the allegations being true and to comply with the onerous but fundamental disclosure obligations imposed by statute.”

Added Damian:

“When considering what safeguards can and should be implemented to minimise this inherent risk, I expect that the Committee will consider the need for organisations to instruct competent legal representatives and to follow the Code for Private Prosecutors recently published by the Private Prosecutors’ Association (PPA) which aims to provide best practice for all participants in the private prosecution process.  The Committee will want to consider the important role external representatives can play in ensuring the required objectivity. The comprehensive Code (adherence to which is not mandatory currently) reminds all private prosecutors and those representing them that above and beyond the initial remit of their case they are essentially Ministers of Justice.”

The Inquiry’s oral evidence session is taking place on 7 July 2020.