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Private Prosecutions – Scissors and Scythe
(CLRNN 2. Private Prosecutions)
Dr Jonathan Rogers
Co-Director of the CLRN Network and Project Lead on Private Prosecutions
As many of our readers know, the Justice Select Committee (JSC) considered safeguards against inappropriate private prosecutions last summer. Since we were (and still are) undertaking a project on private prosecutions, we were among those who gave both written and oral evidence. On 2nd October 2020, the JSC made a number of recommendations for the Ministry of Justice (MoJ) to consider.
Most of the JSC’s recommendations were concerned with measures which might directly or indirectly reduce the risk of miscarriages of justice. But they included two recommendations on costs that can be recovered by those who have prosecuted privately. One has been accepted by the MOJ already, in its recent response on 2nd March 2021, and they are “minded” to agree to the second.
It is those two recommendations on costs on which I focus now. In this post, the main question of principle will be “what proportion of prosecutor’s costs should a convicted defendant (of reasonable means) pay to any prosecutor – whether it be a public or private prosecutor?” All of them? Most of them? Just a modest contribution?
I suspect that most practitioners are inclined to assume that defendants should bear substantial amounts of the prosecution’s costs (with adaption to the means of the defendant). For my part – I cannot speak for the network as a whole – it seems that the case for requiring only a modest contribution is stronger; and again, no matter whether it is a public or private prosecutor. I present my reasoning here but would welcome feedback from readers, including any reference to academic literature on the matter.
The two costs proposals
Quotes first, explanations afterwards. The JSC, apparently influenced by the CPS, had made the following recommendations on costs in October 2020:
The Committee agrees with the CPS that the Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds. We acknowledge the proposal made by the Centre for Women’s Justice that private prosecutors’ recoverable costs should be capped at legal aid rates. We think there should be no disparity between the claims that can be made from central funds by prosecutors and defendants. We also support the proposal made by the CLRNN that defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS. [Para 37]
The MoJ replied in March 2021:
We agree with the Committee that the present arrangements for funding private prosecutions are inequitable as between prosecutors and defendants, and do not always represent a cost-effective use of public money. We agree, in particular, that the costs recoverable from central funds by a private prosecutor should be limited in the same way that costs so recoverable by an acquitted defendant already are, by being capped at legal aid rates. This will require an amendment of the existing legislation. We are also minded to agree that costs recoverable by a private prosecutor from a convicted defendant should be limited, either by being capped at legal aid rates or by reference to what the CPS would have sought, but we wish to consult further on this. We also intend to reflect further, and if appropriate consult, on whether there should be a wider discretion to reduce or withhold payment of costs from central funds in the event of an acquittal. [Annex, Para 3; emphasis added]
So, the first proposal (apparently, already a decision) is that private prosecutors should be restricted in the amount of costs that they can recover from central (governmental) funds. The MoJ would restrict recoverable amounts to those which would be paid under legal aid rates, with the effect that the private prosecutor could only recover the smallest amount of his expenditure no matter how complex and well conducted the prosecution was.
The “justification” for this scything movement is that this would put the prosecutor in the same miserable position as every successful defendant! (Levelling down is, indeed, easier than levelling up; and evidently too it is better not to conduct any impact assessments in respect of acquitted defendants over the last ten years).
The second proposal is that private prosecutors, when successful, should not recover much by way of their costs from convicted defendants either. Here too there should be a cap so that defendants are not asked to pay significantly more than they would have been ordered to pay the CPS. The MoJ is “minded” to agree to scissor costs in this way, but it wishes to consult (or consult “further”, as it says, though it is not obvious that it has so far “consulted” anyone but the CPS).
As you can see from the JSC passage, the second proposal had been suggested by us, and I say more of our reasoning below. For now, I ask you simply to observe that we only recommended a cap on costs recoverable from convicted defendants. We did not recommend the cap on recovery from central funds (first proposal) too, and the latter is entirely a venture of the JSC and, potentially, the MoJ.
Note that legal aid rates are roughly comparable to the level of costs claimed by the CPS from convicted defendants. In both cases they are a fraction of the costs which the private prosecutor would necessarily incur in engaging a solicitor from a reputable (by no means the most expensive) firm.
So, under the JSC/MoJ proposals the private prosecutor would likely still be substantially out of pocket, even when he was successful and thus able to make claims for costs incurred both from central funds (under Prosecution of Offences Act 1985, s.17) and against the defendant (Prosecution of Offences Act 1985, s.18).
Briefly, on the first proposal
I have criticised this elsewhere in 'Private Prosecutions - Cutting them Down to Size?', and many in practice are worried about the prospect of its passing. Ultimately, it is true that the private prosecutor will almost inevitably have paid much more in legal fees than would have been incurred if the work had been undertaken within the CPS. But often the CPS is simply under-resourced to do the work itself; it need not at all be the case that a prosecution brought privately was thought to be without merit by the CPS.
This is why so much complex white collar crime (copyright infringement besides fraud) ends up being prosecuted privately. The government’s own estimate is that £38 billion is lost in lost in the UK each year to fraud; other estimates put it as higher, even as far as £193 billion. At the same time, it is claimed that 96% of even reported frauds remain unsolved. No wonder that the MoJ, whilst radically cutting costs under s.17, also says, without acknowledgement of any inconsistency, that:
prosecutions brought by victims of crime themselves (whether corporate or individual) still have a valuable part to play...
This point, that often the private prosecutor has no choice other than to act for themselves, has been accepted by the courts, especially when deciding costs from central funds in cases where it was clear that the police (and thus the CPS) would not act. The critical part of s.17 (recovery from central funds) is s.17(2A):
(2A) Where the court considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount mentioned in subsection (1), an order under this section must be for the payment out of central funds of such lesser amount as the court considers just and reasonable
In Fuseon Limited v Senior Courts Costs Office  EWHC 126 (Admin) the High Court held that the taxing masters below had deducted too much from the cost awards by comparing the costs claimed with those lower ones which would have been incurred by the CPS. In fact, it rejected exactly the approach which the MoJ has now decided to enact. It said:
It is, however, apparent from paragraph 68 of the Master's decision that he saw no problem in the designated officer having "allowed an hourly rate which may well be perfectly appropriate for administrative costs within the CPS", that being a figure "that does not look entirely out of place with other legally aided rates … ". The CPS accordingly remained central to the way in which the designated officer and the Master applied the Singh discount.
… I consider that the Court of Appeal authorities of R (Law Society) and Zinga are incompatible with the designated officer's decision in the present case (upheld by the Master) to introduce the CPS as a comparator for the purposes of applying the Singh discount. …
….As the evidence shows, Mr Laycock tried his best to get the police to take the case. His decision to institute the private prosecution was a last resort.
….There is no suggestion that the private prosecution was trivial. Although the designated officer and the Master were of the view that the mechanics of the prosecution of Mr Shinners were straightforward, it was, on any view a serious matter. The trial lasted 11 days and Mr Shinners received an immediate sentence of three years' imprisonment. There was, in short, a substantial public interest in seeing him brought to justice. [Paras 96 – 102]
So, when the MoJ now says that its preferred capping
will require an amendment of the existing legislation.
it means that it needs to force the judges to do something which they do not think is “just and reasonable”. He who wields the scythe must first amend the statute.
Naturally, there will be considerable disquiet about this. We ourselves think that the MoJ’s decision is baseless. But we turn to the second proposal – which we did recommend, to the JSC. As we shall see, it is much easier to support this reform to s.18 – but only if none is made to s.17.
Now, the second proposal
Recall that the convicted defendant can also be ordered to contribute to the costs of the prosecutor, whether public or private. It is for the court to decide the amount under s.18, again according to what is thought to be “just and reasonable”. That said the amounts claimed by the CPS may well often seem “just and reasonable” since they are calculated at a low rate, and still do not purport to be fully comprehensive as to the amount incurred. As we know, they always have their own budget to fall back upon.
Naturally, the private prosecutor will have incurred much more cost, but we still thought that he should not be recovering very much of it from the convicted defendant. I still think that this is right, for two reasons (the first of which is my own and not necessarily shared by the rest of the Network). To summarise the reasons already, they are:
A) We should allocate responsibility for costs primarily according to who (if anyone) ought to be responsible for bringing the proceedings; and where there is purported substantial public interest as is the case with criminal proceedings, that is the state.
B) Costs against defendants are potentially coercive towards guilty pleas.
A) We should allocate responsibility for costs primarily according to who (if anyone) ought to be responsible for bringing the proceedings; and where there is purported substantial public interest as is the case with criminal proceedings, that is the state
Sometimes, no one is “responsible”, in the sense of there being any moral duty, to start proceedings. This may be true of most civil suits. Exceptional cases apart, no one is quite “responsible” for starting them, and it would normally serve the public interest better if the litigants could settle out of court. So, we can reasonably do as we do, and not allocate responsibility for costs to any party in particular. Instead, costs follow the outcome: the burden falls on the unsuccessful one who ought not to have started (or the unsuccessful party who ought not to have contested) the proceedings.
Prosecutions, of course, are different. To start with public prosecutions: the CPS should only bring them if they are thought to serve the public interest, and we can reasonably talk of a duty to prosecute effectively, in extreme cases even a duty that is actionable under the Human Rights Act.
Assuming there to be public interest in the proceedings then, the state should primarily fund the prosecution. The responsibility of the criminals is for what they have done and for which they stand potentially to be punished. But it is insincere to say that they bear primary responsibility for the costs of the prosecution process itself. Criminals “deserve” punishment, but, punishment aside, it makes no sense to speak of “deserving” cost orders. Costs are about responsibility, not desert.
The situation does not change much when it is a private prosecutor. The working assumption has surely to be that there is public interest in his bringing proceedings too. If there were not, then the defendant should have asked the DPP to take over and discontinue the prosecution, which by virtue of his policy he or she would do. (The JSC did recommend that more should be done to alert all defendants to this possibility, and it is a matter of regret that the MoJ seems only to have considered the interests of the CPS in deciding that this was not “proportionate”).
From this it follows that private prosecutors, like the CPS, should look primarily to the state to fund its activities, and not to convicted defendants. (It might be possible to make a separate argument that the defendant himself is potentially a tax-payer who has already paid money to the state to use, inter alia, to enforce the criminal law. But such an argument should really not be needed).
Further, it is the state which creates the situation where certain offences have to be prosecuted privately, and thus more expensively. That is a reason not to deny recovery of most reasonably incurred costs under s.17, but it is also another reason to deny recovery of most costs against defendants, who did not design our criminal justice system in this way either.
It would be open for the courts to decide that it is “just and reasonable” to limit recovery under s.18 against defendants to the same levels as to the CPS. A certain step in this direction was taken in D Ltd v A and others  EWCA Crim 1604, where it was said that there should not be a “significant disparity” between the two. But less satisfactorily, it was held that no costs at all should be payable from central funds, due to various irregularities by the prosecutor, so while the case takes the capping point (or something similar) it quite overlooks that the state invariably has a greater degree of responsibility for meeting prosecution costs than does the defendant.
B) Costs against defendants are potentially coercive towards guilty pleas
The second reason was the one on which we relied when we recommended the cap to the JSC. It was related to the JSC’s over-riding concern about miscarriages of justice, and cognisant of the fact that many sub-postmasters pleaded guilty in the face of overwhelming odds, and, apparently, not because they accepted that they were guilty.
Indeed, defendants often lack the courage to fight their corner, and take pessimistic views of their chances, and this may apply equally to the innocent. Any rule which may apply pressure to plead guilty has to be scrutinised carefully, whatever its (different) intended effect might be.
From that perspective, s.18 is potentially wanting. There is nothing to stop successful private prosecutors from claiming far greater costs from the convicted defendant than the CPS might have done, and in some cases, far greater sums than the defendant would have been prepared to pay even for his own defence. Even if the judge might take a robust approach as to what is “just and reasonable”, there is usually the reasonable prospect that they will make a large order, and that is enough if we are thinking about possible pressures on the innocent to cut their potential losses by pleading.
Here then, we see another benefit to the CPS’ relatively modest claims against convicted defendants. Not only do they recognise the primacy of public funds supporting prosecutions, but also no one has yet suggested that they are a coercive factor towards guilty pleas.
The JSC accepted our recommendation, but as we saw above, it coupled it with their own recommendation of a further cut under s.17. Hopefully it can now be seen why this was never part of our reasoning, and why (for us) the cap was a stand-alone recommendation under s.18 only.
The focus in the immediate future is likely to be the case against the announced cuts under s.17. Hopefully it will succeed. Besides, who wants complex private prosecutions virtually to cease altogether? Not even the MoJ.
But I profess myself to be concerned that the MoJ might ultimately decide that the best way out is to abandon the capped costs under s.17, and also not to implement a cap under s.18. It might effectively say to private prosecutors “carry on for now – but claim as much as you can under s.18 when you get convictions, and as little as possible under s.17, else we may think again”.
Indeed, this would apparently be no problem for the Private Prosecutor’s Association. Their voluntary Code already states
The following general principles are applicable:
1. The purpose of a costs order is to compensate the prosecutor for their reasonably incurred (legal) costs.
2. A successful private prosecutor should, in the first instance, consider making an application against the defendant, before it considers an application for costs out of Central Funds….
As you can see, it is not a position with which I agree. But it is a ready-made compromise position between lawyers and the MoJ. Those who would lose out, namely convicted defendants, including innocent defendants who fear the consequences of being found guilty, do not have an effective voice at the table.
Is the CLRNN not pleased?!
You might think that it would be a red-letter day for a law reform network, when the MoJ announces that it is minded to act upon one of our recommendations. But I am far from celebrating. For me, there is an important distinction between a drastic cap under s.18 alone, and one under s.17 or even a combination of the two. The JSC and MoJ draw no distinctions, and propose both cuts in one paragraph, above. Further, as just mentioned, I suspect that if they do back down on the cut under s.17, they will do likewise under s.18.
But radical reform to s.18 alone, and merely greater transparency in regard to s.17, is the most defensible measure. It is not the cheapest option. But then, unless we think that fraud will go away by itself or somehow become less serious if left unpunished, there is only good way for the state to spend less on funding such private prosecutions; and that is to train and recruit sufficient police and CPS workers to deal with white collar crime, so that the public sector can then do the job at their lesser cost.
We are still working on our final conclusions on costs will appear in our report in the summer. In the meantime, if you have any views on defendants’ liability to pay prosecutions costs, do please let me know.