The Rise of Private Prosecutions

The Rise of Private Prosecutions

The Crown Prosecution Service (CPS) was established in 1986 as the principal public prosecuting agency for conducting criminal prosecutions in England and Wales, merging the existing Home Office and Police based prosecuting authorities.

Under the coalition government in 2010, a radical wave of public spending cuts was executed – targeting public bodies across the board. The CPS was not spared during this exercise, finding itself in a quagmire of cost-saving exercises and staff reductions, with the overall budget being cut by 25%. Despite the government’s position that the cuts have had no effect on the operational efficiency of the CPS, the real picture is quite different.

As recently as September 2015, there have been statements made by the Chief Inspector of the CPS, Kevin McGinty, to suggest that funding cuts are preventing the CPS from ‘fulfilling their public service roles efficiently’. Many professionals working in the criminal justice system share the belief that underfunding has created greater risks of miscarriages of justice.

With the Conservative government poised to stay in power until at least 2020, it is unlikely that the CPS will be granted pre-2010 levels of funding. In the face of falling performance in the criminal justice system generally, an alternative method is gaining traction with aggrieved victims of crime: private prosecutions.

Under English and Welsh law (somewhat ironically enshrined in the same piece of legislation that created the Crown Prosecution Service in 1985) any citizen has the right to bring a private prosecution. Private prosecutions allow individuals and businesses to pursue their own privately funded and personally directed prosecution against other parties. In the landmark case of Gouriet v Union of Post Office Workers, Lord Wilberforce remarked that private prosecutions afford a ‘valuable constitutional safeguard against inertia or partiality on part of the authority’.

Many individuals and businesses are now turning to law firms in the private sector to pursue prosecutions independently of the CPS for many reasons, including:

  • The failure of the Police/CPS to investigate and pursue legitimate complaints by victims of crime, especially in usual or developing areas of criminal law
  • The failure of state prosecutions in achieving justice for victims
  • Delays and inefficiencies in the public prosecutions service and witness care

The advantages of bringing a private prosecution are abundant. The core advantage is that the individual or company has greater control over the timing and execution of the criminal case. In this respect, matters pursued by the CPS do not always take into consideration commercial concerns of businesses or the personal concerns of victims or witnesses.

Time, for companies and individuals alike, is money, and a quicker process means a more cost-effective outcome. Private prosecutions provide an avenue to achieve justice professionally and effectively, with minimal fuss.

Freedom is also a key factor in choosing the private prosecution route, as the freedom to pick investigators, barristers and experts allow the individual or business to tailor their approach to the prosecution, with the assistance of an expert solicitor.

Another advantage is flexibility on costs. Criminal proceedings are generally cheaper than their civil equivalent; added to that, the prosecuting party can claim costs at the end of the case, even where the prosecution has ultimately been unsuccessful, as long as it was not entirely without merit. Successful prosecutors can also apply for a range of penalties, including compensation.

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