Safeguards needed to bolster justice in private prosecutions, say MPs

The House of Commons Justice Committee has made a series of recommendations aimed at ensuring that private prosecutions are fairer and subject to the same standards as public prosecutions.

The Committee’s recommendations centred on enhancing existing legal safeguards in the practice of private prosecutions without unduly restricting the right to pursue them. Private prosecutions – that is, prosecutions by an entity or individual not acting on behalf of the police or other prosecuting authority – play an important role in the justice system. The recommendations are contained in a new Justice Committee report (attached).

The report follows a Justice Committee inquiry that received oral and written evidence from a range of lawyers, investigators and academics. The inquiry was mainly prompted by reactions to the startling scale of over 900 fraud and similar convictions reached through Post Office private prosecutions of sub postmistresses, sub postmasters and other workers.

Dozens of these convictions have since been referred for appeal to higher courts by the Criminal Cases Review Commission, which then invited the Commons Justice Committee to undertake an inquiry into the safety of convictions where the prosecutor was also the investigator and the alleged victim - as was the Post Office in these cases.

The Justice Committee’s recommendations include:

• subjecting private prosecutions to the same standards of accountability as public prosecutions, including regulating organisations that conduct frequent private prosecutions to ensure they have the same evidential and legal standards as public prosecutors (and sanctioning them if they do not);
• establishing a central register of all private prosecutions so it is clear to all when and where they are taking place, as well as creating an enforceable code of standards for all private prosecutors and investigators;
• agreement in law that every defendant who is privately prosecuted is informed of their right to a case review by the main public prosecutor, the Crown Prosecution Service;
• that defendants convicted by private prosecutors should not pay more than they would have paid had they been convicted by public prosecutors.

The individual Post Office cases are sub judice and cannot be commented on here.

Nonetheless, the Justice Committee has looked in some detail at the way the Post Office’s private prosecutions were conducted. The Committee concluded that the sheer number of cases brought by the Post Office, and the serious questions surrounding their management, justified a pro-active examination of this area of the law.

The Post Office case is an example of what can potentially go wrong when the alleged victim in a case is also the investigator and the prosecutor.

The Committee took evidence, for example, from the investigations firm, Second Sight, which had earlier conducted a review of the fraud cases for the Post Office. Second Sight noted that the Post Office workers they spoke with routinely brought up their suspicions about the computer system they used to conduct transactions at Post Office counters, known by its brand name, Horizon.

Second Sight told the Committee that Post Office workers “were routinely threatened with the charge of theft, which would not be proceeded with, provided they pleaded guilty to false accounting, made good all losses and did not mention any problems with Horizon”.

The investigations firm told the Justice Committee that inadequate investigations can fatally undermine a prosecution. Ron Warmington of Second Sight said in evidence to the Committee:

“The obvious suspect in a case is not necessarily the perpetrator of the crime, particularly in evidentially complex cases. A package of evidence, therefore, prepared on a false premise, or on the results of a flawed investigation, cannot be remedied at the prosecution stage unless the prosecutor is alert to the possibility that key lines of inquiry have not been pursued and is then prepared to challenge the investigator on that point”.

In 2019, following the granting of a Group Litigation Order to two groups of convicted Post Office workers, Mr Justice Fraser ruled in favour of the first group. The High Court Judge said the Post Office had shown “oppressive behaviour” towards claimants who had been sacked and convicted for accounting errors which they blamed on the Horizon system.

Mr Justice Fraser said the submissions provided by Post Office Ltd paid “no attention to the actual evidence and seem to have their origin in a parallel world”. He added that the Post Office “seemed to adopt an extraordinary approach to relevance, generally along the lines that any evidence that is unfavourable to the Post Office is not relevant”.

The High Court judgement in the second case saw Mr Justice Fraser comment that the Horizon system was not “remotely robust”, which led to a “significant and material risk” of Post Office branch accounts suffering from “bugs, errors and defects”.

The cost of private prosecutions, whether successful or unsuccessful, can in some cases be recoverable from the taxpayer.

Private prosecutions can sometimes cost the State more than using Crown prosecutors. The number and cost of private prosecutions appears to be rising. No-one can be completely sure of this, as there is no central register of such cases. However, in 2014-15 the costs paid out of central funds for private prosecutions amounted to £360,000 in 32 cases. By 2019-20 this had risen to nearly £12.3m. in 276 cases.

The Chair of the Justice Committee, Sir Robert Neill, said:

“The power to prosecute individuals, and potentially deprive them of their liberty, is an onerous power which must be treated with the utmost seriousness.

We’ve received evidence that the number of private prosecutions is increasing sharply. The overwhelming majority of private prosecutors uphold high standards. But the Post Office cases show the potential danger of the power to prosecute being misused. If the number of such cases continues to grow the government will need to ensure that there are systems in place which make such private prosecutions comply with the highest possible standards.

All prosecutions must be pursued with the public interest at heart, either by the State or, if privately, with the same standards used by the State - in all cases with appropriate accountability, transparency and safeguards.

Applying the recommendations made by my Committee would help achieve this goal”.