October marks the beginning of the legal year and this month is the first anniversary of the appointment of Lord Thomas as the Lord Chief Justice. In this role, Lord Thomas is entitled to communicate to the Ministry of Justice his and the judiciary’s concerns and opinions about our criminal justice system. Following the redefinition of the job of Lord Chancellor in order to remove from it any judicial function or responsibility, the role of the chief justice has broadened to fill this constitutional vacuum. In carrying out his job, Lord Thomas is the prime interlocutor or bridge between the judicial and executive branches of government on any matter falling within the rubric of “the rule of law”. Beyond private lobbying, as he can select which criminal appeals to hear and what speaking invitations to accept, a chief justice is also able to publicly convey his views on any subject which he thinks politicians should address.
One year on it has become evident that Lord Thomas is deeply troubled about the future of the system over which he presides. He perceives a fundamental change occurring which he has termed “the retrenchment of the state”. In his speech to the legal think-tank Justice last March, he laid bare his view that the severity of cutbacks in government expenditure concerned with civil, family and criminal justice is a threat to their existence and thus to the rule of law. He contended that in the absence of a competent state, the rule of law would wither and be supplanted by the law of the jungle.
Whilst in his speeches Lord Thomas has sought to awaken the public to the danger to justice posed by the Government’s austerity agenda he has also as a judge sitting in actual cases sought within the limits imposed upon him when acting in a judicial capacity, to oppose the view that in cases of alleged economic crime, the prosecution of them can properly be privatised.
The first manifestation of his conviction that a public prosecutor plays an indispensable role in the prosecution of such cases was the judgment he delivered in the Innospec case in 2010. This did not involve a private prosecution but both the then Resident Judge of Southwark Crown Court which this case was before and Lord Thomas appear to have regarded as an attempt by the then SFO director to recast the prosecutor’s role in order to facilitate the future treatment of economic crime as more akin to a tort.
In a judicial transfer unprecedented in modern times, Lord Thomas “came down” from the Court of Appeal where he sat to the Crown Court in order to preside over this case. So appointed he delivered a scathing judgment of the attempt to introduce US-style plea bargaining in fraud cases and so emasculate the role of the trial judge. He also deplored the SFO’s apparent desire to regard corporate criminality as something less pernicious than “ordinary” crime. The ripples of his judgement continue to spread; the present SFO director embodies the priorities set out by Lord Thomas and so has repudiated his predecessor’s vision. Secondly, last August’s sentencing of two company executives (Kerrison and Papachristos) for their complicity in overseas corruption was redolent with themes articulated in this judgment.
This year Lord Thomas appointed himself judge in two appeals which both concerned a private prosecution; one undertaken by Virgin Media Ltd of a Mr Zinga for conspiracy to defraud. In the judgments he delivered in January and September in each of these cases, Lord Thomas emphasised that whilst private prosecutions were permissible and in many cases, justified, it was a class of litigation highly dissimilar to its civil counterpart. For him it was anathema that potential civil claimants would come to regard prosecuting their commercial opponent as simply an alternative means to suing them in order resolve a dispute. Having diagnosed this danger he then referred to his retrenchment concept and it is clear that he regarded it as the underlying cause of the problem.
Knowing that as a judge he is really only able to address symptoms rather than causes, he could not for instance condemn this retrenchment and by implication, government policy, Lord Thomas set out a number of principles all of which he intended to act as discouragement of private prosecution for alleged economic crimes.
Firstly he indirectly addressed lawyers aspiring to grow a private prosecution practice. He issued a stern warning to them by stating that “There is no place in such a prosecution for what some have claimed as "end to end" case management on behalf of the client who has initiated a private prosecution.” Translating this what Lord Thomas meant was that if when they prosecuted such lawyers regarded themselves as the agent of their client and so believed that they owed no allegiance to the public interest or to the impartial administration of justice then they would be liable for a severe sanction. Presumably in the form of a wasted costs order of even, a finding of contempt.
This warning is also probably a huge discouragement to clients in that it underlines that despite them paying their lawyer to litigate on their behalf, that lawyer owes their primary duty to another and thus is not their agent.
Secondly Lord Thomas sought to eliminate as far as possible any financial incentive attaching to any such prosecution. In the first judgment he held that whilst a private prosecutor could seek a confiscation order in order to strip the accused of any benefit they had obtained from their criminality, any resultant monies were payable only to the state. In relation to a claim for compensation which in contrast is to be paid to a victim, he held that when it and the prosecutor was the same the judge should be vigilant to ensure that there was no exploitation of the accused and to critically consider whether such an order really was a preferable remedy to confiscation. In other words, even if a prosecutor succeeds in convicting the accused and money can then be disgorged, the presumption is that it should all be paid to the state.
In his second judgment Lord Thomas returned to this theme. Presumably he had by then identified what he considered was a perverse incentive which could make it more attractive to prosecute as opposed to sue. A court rule which permits a private prosecutor to claim reimbursement of its legal fees from the state irrespective of the outcome of its case. To have the state standing as guarantor of a client’s fees regardless of the opponent’s ability or willingness to contribute and regardless of outcome is plainly a highly advantageous provision when compared to that applying to civil litigation.
Whilst knowing that he was unable to abrogate it Lord Thomas nonetheless set his sights on it. He held that any future claim would have to be justified on the basis of value for money and that the tariff of lawyers’ fees agreed by the client prosecutor had been the subject of price-competitive tendering. The effect of this new regime is not just a test of reasonableness on hourly rates and the seniority of the lawyer used but also a need to demonstrate that the cheapest lawyer was the one who had been selected. Otherwise Lord Thomas held, no award should be made.
It would be a mistake to believe that Lord Thomas has a visceral dislike of private prosecutions. He does not. His issue is trying to prevent them being regarded by Whitehall as an acceptable replacement for a public prosecutor in cases of alleged crime against financial markets. It would seem that he is concerned that if a private prosecutions “industry” were to be established then this would provide a justification for the retrenchment he fears. So through these cases he seeks to stymie it. Ultimately Lord Thomas sees private prosecutions as the terrain upon which to battle with government in a much wider struggle to preserve criminal justice which he is seemingly convinced faces as a result of government cuts, mortal danger.