Private prosecutions, once a “historical right” that was “rarely exercised” (according to Lord Wilberforce in Gouriet v Union of Post Office Workers (1978)), are now thoroughly integrated into our criminal justice system. Whether the result of dwindling CPS resources (see blog by David Sleight CPS and police struggle under the load of sex abuse investigations) or because of the public’s increased familiarity with the process from high-profile convictions such as ‘King Con’ or the Surfthechannel pirate, the number of private prosecutions being brought is on the rise. However, while a private prosecutor can, in theory, bring a private prosecution for any offence, the consent of the DPP (as head of the CPS), the Attorney General or in some circumstances a relevant minister, is a prerequisite to bringing proceedings for certain offences.
When does the need for this consent arise, what does it mean in practice and, perhaps most importantly, is it justified?
Generally speaking, consent is required when issues of public policy, national security or relations with other countries may have an impact on the decision to prosecute. This includes, for example, corporate manslaughter, corporate homicide, offences under the Official Secrets Act, War Crimes, certain terrorism offences and offences relating to the ill-treatment of patients receiving psychiatric treatment in hospital.
In a case for which consent is required, the DPP will consider whether the case passes the Full Code Test. Namely, she will ascertain whether 1) there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge; and 2) the prosecution is justified in the public interest. If she decides that the test is not met and refuses to grant consent, the prosecution can go no further. If consent is given, the CPS may take over the prosecution.
If for some reason the case progresses to trial without DPP consent having been obtained, decisions will have been made without jurisdiction, will be declared a nullity, and any conviction secured will be set aside.
DPP consent in private prosecutions has long been controversial. The offence of corporate manslaughter, for example, omitted the consent requirement entirely in the 1996 Law Commission Paper and the subsequent 2000 Government Consultation Paper. Many respondents to the consultation expressed serious concern for “insufficiently well-founded prosecutions, which would ultimately fail, and would place an unfair burden on the organisation involved with possible irreparable financial and personal harm" (see the Introduction to the draft Bill). A clause regarding DPP consent was thus inserted in the subsequent Corporate Manslaughter and Corporate Homicide Act 2007. This was despite criticism from groups such as the Simon Jones Memorial Campaign for whom “(t)he financial hurdles alone are so great that only in exceptional cases could a private prosecution be considered”, and the Centre for Corporate Accountability who, viewing corporate manslaughter cases as requiring particular public accountability, argued that “(i)t would …. be perverse to remove the right to bring a private prosecution in the very case where it is most likely to be invoked".
Some common offences that require DPP consent are those prosecuted under:
- The Bribery Act 2010
- The Health and Safety at Work Act 1974
- The Sexual Offences Act 1956
Accordingly, for the putative private prosecutor, it is important to take advice in advance of commencing criminal proceedings that the offence is not one requiring DPP consent.
Given the possible consequences for a person facing criminal prosecution, it is quite right that private prosecutors are subject to additional oversight from the CPS who can, at any time, take over the case for any number of reasons, or terminate it where the Full Code Test is not met. The need for this additional scrutiny is particularly apparent in cases involving public policy, national security or international issues. Such cases should be prosecuted consistently and public policy and international considerations should be brought to bear where appropriate. Whether the right balance is struck between the rights of victims on the one hand and the public interest on the other hand remains a thorny issue. However, so long as these protections are in place it is vital that those tasked with bringing a private prosecution fully understand these limitations.