We wrote in June 2018 about the key issues to consider in making the decision whether or not to pursue a private prosecution and in what circumstances it might be the right option (see here). In light of continuing budget restrictions faced by enforcement agencies and the police, private prosecutions remain on the agenda and an option to be considered in the right circumstances.

A private prosecution is a criminal prosecution commenced by a private individual or entity who is not acting on behalf of the police or any other prosecuting authority. Bringing a private prosecution is fraught with difficulty for the uninitiated. Lawyers acting for the “prosecuting party” face unique problems as they have to balance, amongst other things, the fundamental obligation to act in the public interest and to act as a minister of justice. These obligations will not always be aligned with the interests of the client who has instructed them to pursue the prosecution. A private prosecutor also faces unique problems arising from the lack of powers to compel disclosure of documentary and witness evidence, powers which a prosecuting authority has, but which are not replicated for the private prosecutor and certainly not available otherwise than by application to the Court for disclosure orders/search orders etc.

However, despite being subject to the same obligations to act as a minister of justice as public prosecutors appointed by the state, private prosecutors are not legally obliged to comply with the same codes as public prosecutors (e.g. the Code for Crown Prosecutors). In such circumstances the way private prosecutions have been pursued in the past has, in some instances, been subject to criticism. As a consequence, calls were made for a code to be introduced to bring a degree of clarity to the role of the private prosecutor which would benefit clients seeking to pursue them and the justice system generally in handling them.

The Code for Private Prosecutors

In May 2018, the Private Prosecutors Association announced plans to publish a private prosecution code of conduct and on 18 July 2019 they published a “Code for Private Prosecutors” (the “Code”). The Code aims to “provide a benchmark for best practice in the conduct of private prosecutions” and address some of the unique issues that are faced by those bringing private prosecutions. Compliance to the code is voluntary.

The Code provides welcome guidance which on the face of it should help improve standards, help bring a level of uniformity to the practice of those conducting private prosecutions and provide a point of reference against which the conduct of the private prosecutor can be judged. The PPA has done a great job of seeking to bring order to an extremely challenging environment and we have no hesitation in adopting its principles.

Private prosecutions are, more than ever before, part of the litigation landscape and a legitimate option in the pursuit of fraud claims. The PPA guidance will only help legitimise them further. However, they should always be considered along with the merits of the other options that are available and it may well be the case that choosing to pursue a private prosecution is not the first option. For instance, the recourse available to a claimant seeking to pursue fraud claims through the civil courts may be more attractive for a number of reasons. One reason is that Judges in the High Court are most likely better placed to understand and decide complex factual and legal disputes than a jury might be. There is also a full range of injunctive and evidence gathering orders available to safeguard a claimant’s interests. Further, High Court judgments are readily enforceable in many foreign jurisdictions. However, private prosecutions may well become more common in certain areas, such as employee fraud and for insurers to effectively combat fraudulent insurance claims. Private prosecutions can be an effective option where there is an enormously important point of principle to be established, there are limitation issues that would prevent civil recovery, or there may be insurmountable difficulties in recovering losses from the defendant (which tends to go full circle to the point of principle issue). Further, care must be taken to ensure private prosecutions are not pursued for the wrong reasons – bringing a private prosecution purely for strategic reasons will be an abuse of process.

The Code is available to download from the PPA’s website (here).

DAC Beachcroft’s Commercial Litigation team handle the pursuit and defence of civil and criminal fraud claims, the enforcement of judgments within and outside the jurisdiction of the English Courts and the collection of evidence for use in civil and criminal proceedings in the UK and abroad.

DAC Beachcroft’s Claims Solutions Group handles the defence of civil claims for insurers, with dedicated counter fraud motor, casualty, credit hire, organised, property and cross border teams where appropriate to pursue fraud, fundamental dishonesty, proactive litigation and sanctions.