A reminder of the associated risks of using private prosecutions as a tool to pursue alleged wrongdoing was brought back into the limelight following a recent ruling by the Bar Standards Board (”BSB”) in July this year. A barrister (“A”) of over 20 years’ call was suspended for a month for failing to provide competent standard of work to a client who had directly instructed A. In particular, the BSB ruled that A had failed to advise the client on the implications of bringing a private prosecution; including the fact that a costs order could be made against the client.
What is a private prosecution?
Under the Prosecution of Offences Act 1985, it is possible (subject to certain exceptions) for any individual or entity to bring a private prosecution against another for an alleged criminal offence. Private prosecutions are seen as “valuable protection against an oversight (or worse) on the part of the public prosecution authorities” (per Lord Neuberger in R (Gujara) v Crown Prosecution Service  UKSC 52).
However, despite the powers conferred to individuals by the Prosecution of Offences Act 1985, a private prosecution can be taken over the by Crown Prosecution Service and either continued, or discontinued.
What duties are imposed on a private prosecutor?
Private prosecutors must “conform to the highest standards, as ‘Ministers of Justice’” (per Gross LJ in The Queen on the Application of David Haigh v City of Westminster Magistrates’ Court (Sitting at West London Magistrates’ Court) v Mr Hisham Al Rayes, Mr Jinesh Patel, Mr Peter Gray  EWHC 232 (Admin)), and take great care to comply with what are onerous duties.
Although there is no duty to comply with the Code for Crown Prosecutors (“the Code”) or to apply the Full Code Test (i.e. whether the evidential test is met, and if then, whether it is in the public interest to pursue a prosecution) as there is with a public prosecutor (i.e. the CPS, SFO), private prosecutors should at the very least meet the expectations set in the Code, and apply the Full Code Test when considering the merits of a privately prosecuted case.
In addition, great care must be taken by private prosecutors that a private prosecution is not being sought for an ulterior motive, such as personal interest or as leverage in a civil dispute. Simply put, the sole reason for launching a private prosecution (as there is with a public prosecution) should be to achieve justice.
The BSB heard that A’s client wanted to bring proceedings against a former business partner (“B”) whom the client alleged had fraudulently withheld money owed to the client. A advised the client that he could launch a private prosecution on the basis that if reported to the police, the allegation could be viewed as a civil, rather than a criminal dispute, resulting in the police taking no action. When providing this advice, the BSB noted that A “did not consult the [Code] in terms of the proper test for bringing the private prosecution. Furthermore, [A] did not turn his mind to the potential adverse consequences of pursuing a private prosecution…”
B took legal advice once the prosecution had commenced. B’s solicitors referred the case to the CPS who took over A’s private prosecution, and subsequently discontinued it on the basis that the Full Code Test had not been met. The BSB noted that the public interest limb of the Full Code Test would not have been met because A “got the impression” that the private prosecution was being used as a “negotiating tool against B”, therefore not meeting the standards noted earlier. It transpired that prior to launching the private prosecution, the client had brought civil proceedings against B which had been struck out.
The result of the client’s endeavours was that he was made the subject of a £40,000 costs order under s.19 of the Prosecution of Offences Act 1985 on the basis that B had incurred costs as a result of an unnecessary or improper act or omission by the client. In its ruling, the BSB also noted that A had not advised the client on “a possible adverse costs order against the client”.
The BSB's ruling should serve as a glaring reminder to anyone considering pursuing or advising on a private prosecution. The rise of private prosecutions have seen both spectacular successes as in the private prosecution of Ketan Somia, who was convicted of nine counts of fraud totalling £13.5m and significant losses as in the David Haigh case, which resulted in the court awarding costs of £230,000 in favour of three individuals whom Mr Haigh had brought proceedings against in the UK.
With ever increasing constraints to the public purse, it is likely that this ruling will do little to discourage individuals from seeking justice in a criminal court by mounting a private prosecution. However, caution should be taken to ensure that the correct approach is adopted when considering a private prosecution, and if one is pursued, that the duties are adopted fully and throughout the proceedings.
BLM's White Collar and Investigations team regularly advise clients on all aspects of criminal law, including consideration of the merits or otherwise of the pursuit of a private prosecution and the appropriate strategy for those facing such a prosecution.