Criminal Law Reform Now Network

CLRNN 2 - Private Prosecutions - Update

As readers will likely know already, the government has promised as yet unspecified reforms to private prosecutions as part of the fallout from the Post Office scandal and the (literally) dramatic way in which the matter has recently reached the public consciousness.

In a sense some promise of reform is not entirely new. The Justice Select Committee made recommendations regarding possible safeguards, in 2020 and again in 2021. On behalf of the CLRNN, as project lead, I also sent a paper to the MoJ in August 2021 concerning the merits of an inspection regime, which was acknowledged by the MoJ in a response to the JSC in January 2022. In that letter, James Cartlidge MP, then Parliamentary Under-Secretary of State for Justice, indicated that his team would be further in touch with us. Since then, the matter went quiet while Sir Wyn Williams started his inquiry into the Post Office saga. But we are, as ever, willing to advise or work with the Ministry as they see fit, according to their timetable as it may now be.  

We expect to complete our report in spring of this year (2024), but it may be of interest if we already outline our direction of thinking, and specify the ways in which any interested persons might still assist us.

• We believe that there is still a place for so-called private prosecutions, by which term (which has no statutory or other definition, and the meaning of which thus usually depends on the context in which the term is used) we mean any prosecution which is not conducted by the Crown Prosecution Service or the Serious Fraud Office.
• We believe that it is possible to set some limits on the circumstances in which the DPP may be invited to take over a private prosecution at the behest of the accused.
• However, persons or bodies which undertake prosecutorial work, including their legal representatives, should be accredited. Where this has not happened, a magistrate should only issue a summons to start the proceedings in exceptional circumstances. Further information should also be supplied than is currently the case to the examining magistrate in all cases when a summons is requested.
• The possibility of compulsory inspection of private prosecutors should be created. (At the moment there is only a statutory power to inspect the CPS and SFO) and powers to restrict or inhibit prosecutors might then follow from that inspection.
• We will also propose various reforms to the costs regime, but we do not support any move to tie recovery of prosecutors’ costs to those which apply to legal aid work. We have already set out some of our thinking on s.17 and s.18 Prosecution of Offences Act 1985 here.

Individuals or bodies who should like to be involved, and interested journalists, should jointly email me at jwr53@cam.ac.uk and our network facilitator Laura at L.Noszlopy@bham.ac.uk . We are particularly interested to hear from:

• Those with experience in regulating lawyers in private practice,
• Those with experience in inspecting the work of prosecutors,
• Those with experience in applying for summonses in the magistrates’ courts,
• Those with relevant experience in conduct or defending private prosecutions, including applications for cost orders.

CLRNN 2 - Private Prosecutions - Article in The Conversation

Just published: Why the Post Office was able to bring private prosecutions in the Horizon IT scandal

New Law Commission link; and New Project

The Criminal Law Reform Now Network (CLRNN) is pleased to announce a Memorandum of Understanding with the Law Commission of England and Wales, facilitating a closer working relationship and the increased exchange of ideas. The MoU, the first of its kind, sets out agreement for

• The institution of periodic meetings between the Law Commission and CLRNN to discuss potential law reform projects;
• The receipt from CLRNN (and public acknowledgment from the Law Commission) of proposals and reports that would address the feasibility, value and scope of potential law reform projects;
• The joint discussion of ideas and the provision of feedback from the Law Commission to CLRNN so as to increase the potential value of CLRNN ideas to the Law Commission; and
• The receipt from CLRNN of invitations to attend and/or present at relevant conferences on areas of mutual interest. The MoU will initially run for two years.   

Under the second heading of the MoU, the CLRNN is also pleased to announce a new project exploring reform options in relation to International Co-Operation and Extradition (ICE), led by Dr Gemma Davies. The CLRNN has been invited to undertake the ICE Project by the Law Commission Criminal Law Commissioner – Professor Penney Lewis – following the Commission’s 14^th Programme consultation. CLRNN will conduct a scoping study to examine whether a law reform project in these areas may be warranted and, if so, what the scope of a project might be. We expect to deliver a Report to the Commission by the end of 2024, and will make the Report publicly available thereafter.

            The CLRNN welcomes any and all engagement from stakeholders, including criminal law academics and practitioners. For updates (and to get involved) in this and/or our other reform projects, please keep checking the website; follow us on twitter/X @CLRNNetwork; our YouTube Channel; and (new) via LinkedIn.