What is private prosecution best practice?
 Marlon Pinto

Marlon Pinto

What is private prosecution best practice?

The number of private prosecutions conducted in the UK has grown steadily over the past decade.

Far from a last resort or a special privilege reserved for the fabulously wealthy, the Prosecution of Offences Act 1985 allows anyone in the UK and Wales to bring a case independent of the police or Crown Prosecution Service (CPS). And, as private prosecutions can be smoother and more cost-effective than traditional state-led litigation, it continues to play an integral role in the UK justice system.

Nevertheless, private prosecutions come with their own unique challenges. A fact that contributed directly to the creation of the Code for Private Prosecutors (CPP).

A collaborative project between the Private Prosecutors’ Association and its members (AnotherDay’s Simon Davison being on the steering committee and helping write the code), the aim of the Code for Private Prosecutors is to provide those contemplating private criminal proceedings with a comprehensive, best practice guide that details exactly what they can expect at every stage of the process.

In this article, we highlight some of the key areas covered in the code, explaining what constitutes best practice in each case.

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Code for Private Prosecutors: best practice

Setting expectations

Best practice as laid out by the CPP demands that the private prosecutor’s expectations are clearly and accurately set before proceedings are initiated.

The law or investigation firm undertaking the case must make explicit their role as a minister of justice. They must explain that, though retained by a private entity or individual, they are held to the same standards and obligations as the public prosecuting authorities. Consequently, they must demonstrate unwavering integrity and regard for the public interest when investigating a case.

They are forbidden from showing undue bias towards their client. This means they must pursue all reasonable lines of inquiry — whether leading towards or away from guilt. Similarly, if the investigator determines the case to be vexatious or an abuse of process, they will be expected to withdraw or refuse to act on the client’s behalf.

Representatives have a duty to set client expectations in several other key areas. For example, the client should be informed that:

  • Burden of proof lies on the prosecutor to prove, beyond all reasonable doubt, that the defendant is guilty as charged.
  • Control of private prosecutions can be assumed by the CPS and stopped if the case fails to meet the standards laid out in either stage of the Full Code Test. This isn’t a strict legal requirement, it’s likely the case won’t make it to court if it fails either the evidential sufficiency or public interest stage. 
  • They are entitled to make a full report of the crime to a relevant law enforcement agency before initiating a private prosecution (if they haven’t already). In situations where the state has declined to prosecute, they should be made aware of the Victim’s Right to Review Scheme.
  • The investigator may be unable to share certain aspects of the case or evidence obtained with the client, particularly if they are a witness to proceedings.
  • Investigators have limited powers when it comes to obtaining pre-charge evidence (this should be laid out in the Terms of Engagement).

A full and accurate explanation of the prosecutor’s disclosure obligations should also be provided, along with a comprehensive breakdown of the final implications of commencing a private prosecution in the UK. This includes the circumstances under which costs can be recouped from either the defendant or central funds and that the client may be subject to an adverse costs order if the prosecution is found to be vexatious or an abuse of process.

Early liaison with investigators and specialist law firms are therefore advised to guide the client through this process.

Investigative process

After signing the Private Prosecution Agreement, the private prosecutor should be provided with a written document outlining the terms and scope of the ensuing investigation.

Aside from clarifying exactly how the investigator will go about pursuing their case, this shows that the investigation will be conducted thoroughly, impartially, and independently. Moreover, it explains the case will be conducted within legal limits and in a way that adheres to paragraph 3.5 of the CPIA Code of Practice: that, over the course of the investigation, they pursue all reasonable lines of inquiry.

Procedures should be put in place from the outset to ensure that any evidence or unused material generated during the investigation is recorded as soon as it is received. Additionally, this guarantees the continuity and admissibility of evidence throughout. Similarly, any interactions with victims and witnesses — such as notes taken during interviews and email correspondence — should also be retained, as unused material will be crucial from a disclosure perspective.

In most cases, conventional investigation will be sufficient to gather the required evidence. However, at times, covert investigation will be required to assist in gathering overwhelming evidence to support a criminal prosecution. This must be proportionate, necessary, and legal. It is highly recommended that prosecutor's seek advice from specialist investigators and lawyers before undertaking any such activity.

Regardless, the decision to commence surveillance should be accurately documented, along with the reasons that deem it necessary and the nature of the techniques employed. The private prosecutor should also be informed that certain methods of surveillance are reserved for public authorities only and thus would constitute a criminal offence if utilised by a private investigator.

The results of the investigation should amount to a prima facie case that provides a realistic prospect of securing a successful conviction. Nevertheless, it is ultimately the investigator's job to ensure a just verdict is reached — whether that favours the prosecutor or not.

Gathering and managing evidence

Cases are won and lost on the strength of the evidence presented. But for it to be admissible, the court needs to know how it was obtained and managed over the course of the investigation. It is for this reason that best practice, as recorded in the Code for Private Prosecutors, advises investigators to make sure their processes and methodologies comply with the same codes of practice that apply to state-run law enforcement bodies.

Evidence must be presented by a reliable witness during criminal proceedings, while the investigator must manage available material carefully to preserve continuity. 

Victims and witnesses are central to any criminal case. Therefore, interviews should be conducted by trained and experienced investigators to ensure the process is open, fair, and transparent, and that the best available evidence is gathered. The investigator will then create detailed statements and confirm that any notes and correspondence is retained and scheduled correctly, adhering to disclosure obligations. This will help to prevent any potential issues arising at court.

Accurate records must also be kept detailing how evidence (physical or otherwise) was gathered and by whom. Where digital evidence is concerned, the private prosecutor must be able to show the specific review methodology that was applied, and which search terms were used to obtain it. (See the ACPO Good Practice Guide for Digital Evidence).

Where suspect interviews are concerned, private prosecutors should be made aware that potential suspects cannot be compelled to attend interviews and no adverse inference from silence can be drawn. Depending on the circumstances of the case, suspects may be invited for a voluntary interview. However this will be guided by the investigation team and counsel.

The private prosecutor is free to seek the court’s help during the evidence gathering stage of the investigation. However, they must observe a duty of full and frank disclosure before making an application. This states that they won’t attempt to mislead the judge or withhold information that might prove harmful to their application. Material that might be considered inconvenient or damaging to the prosecution cannot not withheld from the court — for any reason. Although this will depend on the circumstances of each case, so advice from investigators and specialist law firms should be sought.

Adhering to the CPP’s best practice guidelines, in conjunction with the Code for Crown Prosecutors, guarantees the admissibility of evidence and ensures that the investigation has been conducted impartially and justly. In turn, this proves that the case isn’t an abuse of process and falls within the public interest, while increasing the prosecution's chance of securing a satisfactory verdict.

Transparency and disclosure obligations

To safeguard the integrity of the legal process, private prosecutors must make sure they are transparent with the court at every stage. An essential part of that is understanding when and how information should be disclosed in relation to the various regulations and legislation laid out in the CPP.

Most criminal cases fall down due to disclosure failings. So, ensuring that the prosecutor's disclosure obligations are managed correctly from the very outset of the investigation will go a long way to preventing future issues at trial.

This extends to any material that does not form part of the prosecution's evidential case; categorised as 'unused'. A test is then made to ascertain its relevance to the case at hand, whereupon any relevant material will be retained and scheduled. Following this, a secondary test will be performed to assess whether the identified material assists the defence or undermines the prosecution. Should that be proved, it must be disclosed to the defence to support their case. This is in the interests of justice and, if this is not adhered to, then the entire case may be compromised.

Consideration should also be given as to whether unused material is sensitive or non-sensitive. All unused material should be scheduled, and consideration given to listing sensitive material on a separate schedule, outlining the reasons why the material qualifies as being sensitive. Private prosecutions differ in this regard to state run investigations, but any material that carries with it a risk to the welfare of an individual, such as a whistleblower, may satisfy this requirement.

Once complete, the prosecutor’s motives for bringing the case should be summarised in a written statement. This ensures the prosecutor has met their common law and statutory criminal disclosure obligations and aren’t bringing a vexatious case or attempting to use criminal proceedings to leverage a concurrent civil action.

Prosecutors should also bear in mind that disclosure obligations continue throughout the life of the investigation, until the end of trial. At which point the prosecution will often be required to produce a Disclosure Management Document (DMD) to prove to the court that the investigation was handled lawfully and impartially, and that disclosure obligations have been adhered to. 

Best practice is to have a 'disclosure officer' working alongside the investigation team; especially as the law stipulates that investigators are well within the rights to disclose information without prior reference to the private prosecutor. Early liaison with investigators and law firms will be able to assist with this process.

In addition to disclosure obligations, the prosecutor is expected to fulfil their duty of candour during the application for a summons to commence criminal proceedings — particularly as these applications are normally made ex-parte. Failure to adhere to these obligations may result in the entire case being discontinued, irrespective of the nature and strength of the evidence against the accused.

Failure to fulfil the disclosure obligations demanded by the courts could result in proceedings being suspended or discontinued entirely as an abuse of process — irrespective of the strength of the evidence used to support it. Early consultation with specialist investigators, solicitors, and counsel from the outset is thus paramount.

Seeking justice through private prosecutions

Private interests often lie at the heart of the decision to initiate a prosecution. As such, they typically receive more scrutiny than public cases, putting an even greater burden on the prosecutor to ensure they adhere to the uncompromising standards of the UK criminal justice system.

So, while there is no legal obligation requiring you to follow the Code for Private Prosecutors, having a comprehensive document like the CPP can be hugely beneficial — especially when read alongside the Code for Crown Prosecutors.

This is particularly important today, as the number of privately pursued cases in the UK continues to rise.

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