On 7th July 2020, a House of Commons Parliamentary Committee convened to scrutinise the safeguards in private prosecutions, in order to reduce the risk of miscarriages of justice.
Private Prosecutions offer a real opportunity for victims of crime to seek justice, where the resources or priorities of the state may not be able to assist. It is, however, imperative that the highest standards of investigation and prosecution are maintained, and that the entire process is open, fair and transparent, in order to ensure convictions are safe.
AnotherDay's submission to the Parliamentary Committee focussed on the investigations and disclosure process, and our key points are below:
- Independent investigators should conduct the criminal investigation for a private prosecution, who are separate to the victim or organisation bringing the prosecution, and can obtain and review the evidence objectively.
- The investigation team should also be separate from the legal team reviewing the case, this is to ensure complete impartiality on all sides.
- The investigators should be experienced investigators, trained to the national detective standard (at least PIP level 2 or equivalent), and be experienced in investigating serious and complex crime.
- These investigators must remain impartial, with their duty to the court rather than to the victim or organisation bringing the private prosecution.
- The investigators must assume the role of ‘officer in the case’, as per a police investigation. In this way they must conduct the investigation in the same way as a state-led investigation, pursuing all reasonable lines of enquiry that both lead towards and away from guilt. They must keep an open mind at all times.
- The investigation process must be open, fair and transparent, to allow external scrutiny should it be required.
- The investigation team should take on the role of ‘disclosure officer’, ensuring disclosure obligations are adhered to from the very outset of an investigation. They must be reviewing the unused material continuously and highlight material that assists the defence or undermines the prosecution to reviewing lawyers at the earliest opportunity.
- The victim or organisation bringing a private prosecution should be advised of the above stipulations, and agree to them prior to the beginning of a criminal investigation.
Our submission explored these key points in more detail, but fundamentally the key with a private prosecution is mirroring the police/CPS model wherever possible, and ensuring the highest standards of investigation, disclosure and legal review are maintained at all times. A mindset of impartiality throughout, and the ultimate duty to the court, is also vital to ensure any prosecution is conducted correctly.
We are seeing an increasing amount of private prosecutions, for a wide variety of offences, including fraud, cyber crime, and offences against the person. In most cases the matter has been reported to the police, who are unable to assist, and therefore this provides the victim with a real recourse to justice. Ensuring the prosecution is conducted fairly, and the duty of the investigator and legal representatives are to the court, protects the integrity of this process.