WSG Article: The Criminal Procedure (Amendment No.2) Rules: stemming the tide of private prosecutions?

The Criminal Procedure (Amendment No.2) Rules: stemming the tide of private prosecutions?

November, 2022 - Shoosmiths LLP

The Criminal Procedure (Amendment No.2) Rules introduce changes to private prosecutions. The Rules amend the existing Criminal Procedure Rules 2020, introducing new criteria that may well serve to curtail the increasing number of private prosecutions, thereby reducing the consequent pressure on the courts and all those involved.

The Criminal Procedure (Amendment No.2) Rules

The Criminal Procedure (Amendment No.2) Rules (S.I. 2022/815) (‘the Rules’) came into effect on 3 October 2022. The Rules introduce a wide variety of changes to the provisions of the Police, Crime, Sentencing and Courts Act 2022 and the Judicial Review and Courts Act 2022.

The Rules introduce three key changes in respect of private prosecutions:

A list of circumstances in which the courts can refuse to issue a summons;
A requirement for all summonses to identify the private prosecutor; and
Additional information requirements for those applying for costs orders.

These changes impose additional requirements on those seeking to bring private prosecutions and provide the courts with a more uniform and objective approach to issuing summonses, or indeed refusing to do so.

The changes come at a time where the courts have seen a sharp rise in the number of private prosecutions being brought. In the 2019-2021 Ninth Report of Session, issued by the House of Commons Justice Committee, it was evidenced that private prosecutions are rising. For the period of April 2019 to March 2020, the Special Crime Division quality assured 49 private prosecution referrals. Of the 49 referrals, the CPS decided to take over 32 private prosecutions; only 3 of which were continued.

Often businesses, other organisations and institutions are the subject of these proceedings and are expected to find the time and funds to comply with the obligations thereby imposed upon them, despite the relatively high proportion of discontinuances (i.e. notwithstanding that the statistics suggest the prosecutions can be of dubious merit). The Rules introduce changes to the way private prosecutions proceed, allowing for greater scrutiny and a more objective process.

The Changes

Section 6 of the Prosecution of Offences Act 1985 (‘POA’) allows any person to start a private prosecution if they can satisfy the court that the proposed defendant’s alleged conduct, if proved, would amount to a crime. In recent (pre-Rule change) cases, defendants have frequently challenged whether the court has exercised the oversight it should have when issuing a summons. If followed, the changes introduced by the Rules should ensure greater consistency in the courts’ approach to allowing (or refusing to allow) private prosecutions.

Prior to the introduction of the Rules, private prosecutions had been allowed to proceed despite failing to meet the evidential and public interest tests required of public prosecutions. In R (Smith-Allison) v Westminster Magistrates' Court (No.2), the Administrative Court overturned a decision of the Justice of Peace (‘JP’) to refuse to issue summonses instituting a private prosecution. The JP had concluded that the application for the summonses was “vexatious”, however the Administrative Court held that summonses are expected to be issued unless there is a compelling reason not to. In Muhammed Asif v Adil Iqbal Bitta and Noreen Riaz, an individual initially successfully brought a private prosecution, though it was later stayed on the grounds that there was not sufficient evidence and no intention to serve the public interest. These cases highlighted the need for a more clear and consistent approach to issuing summonses, which the Rules now aim to provide.

The Rules now permit the court to decline to issue a summons, providing some examples of where this would be appropriate, including where:

The prosecutor fails to disclose all the information that is material to what the court must decide;
The prosecutor has reached a binding agreement with the defendant not to prosecute;
The prosecutor asserts facts incapable of proof in a criminal court as a matter of law; and
The prosecutor’s dominant motive would render the prosecution an abuse of the process of the court.

This means that courts are no longer bound by a presumption that a summons will be issued, they now have legislative grounds for refusing to do so. This change introduces some much-needed clarity and is likely to result in a reduction both in the number of summonses issued for private prosecutions, but also challenges to their validity. This should in turn reduce the burden placed on the court (and the public purse) and on the individuals and businesses that may have been the subject of such prosecutions.

The Rules have also amended Rule 7.4 of the Criminal Procedure Rules 2020, and now require the prosecutor to be identified for every summons issued on the application of a private prosecutor. This will make it easier for a defendant to oppose the continuation of proceedings in court, and/or invite the Director of Private Prosecutions to intervene. This was borne out of a recommendation by the House of Commons Justice Committee in 2020, that “every defendant who is privately prosecuted should be informed of his or her right to seek a review from the Crown Prosecution Services” (‘CPS’). In our view, it is likely that this change will increase the total number of private prosecutions being reviewed by the CPS. CPS guidance states that a private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met. It therefore follows that an increase in objective reviews by the CPS should ensure that only those private prosecutions with legal merit are allowed to proceed.

Both private prosecutors and defendants have a right to claim legal costs under the POA 1985, as set out in the Criminal Procedure Rules. Historically, the courts have often lacked the information necessary to make an informed assessment as to whether or not to award legal costs in a private prosecution. The Rules amend Rule 45.4 of the Criminal Procedure Rules 2020, now requiring the court to be provided with certain information in respect of the costs claimed. The updated Rule also permits the court to decline to make a prosecutor’s costs order if the applicant fails to provide sufficient information. This change puts the judgment in the case of (TM Eye Ltd) v Southampton Crown Court (where the court refused to award legal costs as it lacked sufficient information to make an assessment) on a statutory footing. This should ensure a more consistent and accurate approach to costs applications and awards.

The Future

With the number of private prosecutions rising in recent years, case law demonstrates how the courts have struggled to effectively and consistently manage the potentially difficult balance between allowing the individual to exercise his or her legal rights to bring a private prosecution in proper cases, and protecting other individuals, businesses and institutions from being the target of costly criminal proceedings, which are either without legal merit, without any public interest, or plainly vexatious. The amendments introduced by the Rules (including the provision of circumstances in which a court may refuse to issue a summons and the potential increase in objective reviews of private prosecutions by the CPS) are likely to result in a decrease in the number of summonses being issued and, where they are, private prosecutions being continued.

The Rules undoubtedly have the aim of reducing the number of private prosecutions being brought. Many will welcome these changes, as they should reduce the strain on the court system and the time and money which might have to be spent by individuals and organisations in defending them.

Time will tell whether the Rules have been effective. In the meantime, any individual, organisation or institution who is the likely subject of a private prosecution, may wish to consider strategies as to how, at the assessment stage by the court, any representations they might wish to make about the merits of the prosecution are heard and considered, as part of the courts’ difficult balancing of competing legal rights.

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