Here is Our Email to the Government re. Private Prosecutions Consultation launched on 6th March 2025
| Oversight and regulation of private prosecutors in the criminal justice system consultation |
| Spoken injustice <admin@spokeninjustice.net> | 18 April 2025 at 17:50 |
| To: PrivateProsecutionConsultation@justice.gov.uk | |
| This submission is provided in response to the Ministry of Justice’s call for evidence on private prosecutions. While we are not an organisation that brings private prosecutions, we have a strong interest in the fairness, accountability and transparency of the justice system as a whole. Our responses to the questionnaire below, marked in red, reflect our observations, experience and concerns regarding current practices in private prosecutions and the potential for reform. Several members of our community who were prosecuted by the RSPCA have raised serious concerns about the organisation’s investigatory and prosecutorial practices. In response, we conducted a survey which highlighted consistent patterns of procedural failings.These issues include bringing charges without first conducting an interview with the suspect, failing to meet disclosure obligations, problems with the summons application process (particularly where the Police act on behalf of the private prosecutor without sufficient scrutiny), and a concerning lack of legal understanding in the conduct of cases. Collectively, these findings highlight systemic failings that compromise fair trial rights and weaken accountability within the framework of private prosecutions. We welcome this review as a necessary step in addressing the inconsistencies and risks associated with privately-brought prosecutions. Our submission supports the introduction of clearer safeguards, such as a mandatory code of practice, improved oversight and greater transparency, designed to ensure that private prosecutions align with public interest objectives and uphold the rights of all parties involved. We emphasise that, in line with the Government’s proposal, it is appropriate that this reform be limited to private prosecutions brought by organisations and not extend to those initiated by individuals acting in a personal capacity. However, the Government should go further. In our view, this reform should be guided by the overarching principle that private prosecutions are intended to supplement, not replace, public prosecutions, serving only where necessary and justified. To safeguard against potential misuse, organisations should first be required to refer the matter to public prosecutors. Only where public authorities decline to prosecute should a private prosecution proceed. Accordingly, private prosecutions should be contingent upon demonstrating that public prosecutors have failed to act where there were sufficient grounds to do so. This safeguard should include: Evidence of Public Prosecutor Inaction: Private prosecutors must show that public authorities have declined or failed to pursue a case despite credible evidence, including documentation of efforts made to prompt action. Defined Legal Standard for Inertia: A clear legal threshold should be established to determine what constitutes inaction or inertia by public prosecutors. Meeting this threshold would be a prerequisite for proceeding with a private prosecution. Independent Judicial Oversight: An impartial judicial authority or designated body should assess whether the criteria for public inaction have been met, ensuring that private prosecutions are only permitted where the public prosecution system has demonstrably failed in its duty. Additionally, we propose that legal advisers, whether barristers or solicitors, who take on private prosecutions should have their fees capped at the same rates as public prosecutors. This measure will enhance public trust in the private prosecution system by mitigating concerns about profiteering and ensuring that prosecutions are conducted fairly and ethically. Furthermore, it will reduce the incentive for solicitors to pursue private prosecutions solely for financial gain, thereby encouraging prosecutions that serve the public interest rather than being driven by the prospect of higher fees. We hope that our contribution will be of assistance in informing future policy development.Kind Regards, Anna Doherty Founder and Director https://spokeninjustice.net/ Questionnaire 1. Are you responding on behalf of an organisation that brings private prosecutions? Yes No 2.If you are responding on behalf of an organisation that brings private prosecutions, how many prosecutions did your organisation bring in the last financial year (2023–2024)? Please select: Less than 100 100-500 501-1,000 1,001-5,000 5,001-10,000 More than 10,000 Don’t know N/A 3.If you are responding on behalf of an organisation that brings private prosecutions, is your organisation authorised to commence prosecutions using the Single Justice Procedure (SJP)? Yes No Don’t know N/A 4.If you are responding on behalf of an organisation that brings private prosecutions, does your organisation commence prosecutions outside the Single Justice Procedure? Yes No Don’t know N/A Chapter 1: Consistency of Standards and Accountability Code of Practice 5.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice? Yes No Don’t know Please provide reasons for your answer. Private prosecutors should be bound by a mandatory code of practice to ensure they uphold the same ethical and procedural standards as public prosecutors. This alignment reinforces the principle that all prosecutions, whether public or private, must serve the public interest rather than pursue a conviction at any cost. A clear code of practice provides a vital framework for accountability, allowing improper conduct to be challenged and reviewed. It helps prevent abuses such as coercive tactics, mishandling of evidence or pressure on witnesses, all of which threaten the fairness of a trial. Moreover, private prosecutions often stem from personal grievances or civil disputes, making it essential to guard against motivations rooted in revenge, malice or financial gain. A mandatory code ensures that such actions are driven by a legitimate pursuit of justice. By holding private prosecutors to consistent standards, public trust in the integrity of the justice system is strengthened, especially in cases where the state has opted not to prosecute, and it promotes greater clarity and predictability for courts, defence and the wider public. 6.If you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice, do you think this code should apply to: All private prosecutors bringing prosecutions Only those private prosecutors who bring a certain number of prosecutions (please specify what you think this number should be) Only those private prosecutors who are defined using a different measure, other than the number of prosecutions they bring (please specify what you think this should be) Don’t know N/A 7.If you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice, please provide your opinions on requirements that could be included in the code (select all that apply): A requirement for the separation of functions between investigators and prosecutors A requirement for the separation of functions between those who decide whether to commence a prosecution, and those who carry out the prosecution A requirement to consider whether there is sufficient evidence to secure a conviction A requirement to review the public interest test before commencing the prosecution, and keep it under review throughout proceedings Please provide any other requirements you think should be included in the code, including any considerations exclusive to private prosecutions such as a requirement for companies to report all prosecutorial activity to its Board of Directors Reporting: Companies to report all prosecutorial activity to its Board of Directors Ethical Standards: Implementing strict ethical guidelines that private prosecutors must follow, ensuring fairness, integrity, and respect for the rights of the accused. Professional Qualifications: Requiring private prosecutors to possess specific qualifications and training comparable to those required of public prosecutors, particularly in relation to disclosure and public interest. Conflict of Interest Rules: Establishing clear rules to prevent conflicts of interest, ensuring that private prosecutors act in the public interest rather than for personal gain or vendetta. 8.If you are answering this consultation on behalf of an organisation that brings private prosecutions: do you currently follow a Code (for example, the Code for Crown Prosecutors) when bringing prosecutions? Yes, please state which Code you use No Don’t know 9.If you are answering this consultation on behalf of an organisation that brings private prosecutions: If your organisation does follow a code, how much time/resource does this take? Please specify whether your estimates are based per prosecution or per annum. 10.If you are answering this consultation on behalf of an organisation that brings private prosecutions: If your organisation does not follow a code, how much additional time/resource do you anticipate it would take to comply with a code that mirrors the Code for Crown Prosecutors? Please specify whether your estimates are based per prosecution or per annum. 11.Please provide any examples of best practice ensuring consistency of standards in private prosecutions (either used by you or your organisation, or that you know of). 12.If you have any other thoughts about a code for private prosecutors which have not been captured in the questions above, please provide these. Inspectorate 13.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be subject to inspections from an inspectorate? Yes No Don’t know 14.If you agree that some or all private prosecutions should be subject to inspections from an inspectorate, should this requirement apply to (please select one): All organisations bringing private prosecutions Only those bringing a certain number of private prosecutions (please specify what you think this number should be) Only those private prosecutors who are defined using a different measure, other than the number of prosecutions they bring (please specify what you think this should be) Don’t know N/A Frequency Threshold – We ask that a “Frequency Threshold” (suggested 36 or more prosecutions per year – that is an average of 3 per month) which triggers mandatory oversight be set. Regular Audits: Conducting regular audits and inspections of the activities, case files, and conduct of these high-frequency private prosecutors to ensure compliance with legal and ethical standards. Disciplinary Measures: Establishing clear disciplinary measures for private prosecutors found to be violating standards or engaging in misconduct, including suspension or revocation of their right to prosecute privately. We also ask Reporting Requirements for all Private Prosecutors: Mandating all private prosecutors (whether frequent prosecutors or not) to submit detailed reports of their activities to a regulatory body, which would review these reports to detect any patterns of misuse or abuse. 15.If you agree that private prosecutors should be subject to inspections from an inspectorate, what would be a suitable consequence if a prosecutor fails an inspection? – Requirement to declare to the magistrates’ court any previous negative reports/failure to meet the required standards when applying for summons to commence a prosecution. Suspension of their right to prosecute privately subject to specific conditions being met before reinstatement. A second suspension should result in the permanent revocation of that right. Removal of right to use SJP if applicable. Removal of status as ‘relevant prosecutor’ if applicable, meaning a requirement to apply to the magistrates’ court for a summons to commence future prosecutions. Other, please state Don’t know N/A 16.If you have any other thoughts about an inspectorate for private prosecutors which have not been captured in the questions above, please provide these. Fees – We ask that a requirement is set for legal advisers, whether barristers or solicitors, who take on private prosecutions to have their fees capped at the same rates as public prosecutors. This measure will enhance public trust in the private prosecution system by mitigating concerns about profiteering and ensuring that prosecutions are conducted fairly and ethically. Furthermore, it will reduce the incentive for solicitors to pursue private prosecutions solely for financial gain, thereby encouraging prosecutions that serve the public interest rather than being driven by the prospect of higher fees. Accreditation 17.Do you think there should be a system of accreditation for private prosecutors? If so, please specify whether you think this should be mandatory or voluntary. Yes, mandatory Yes, voluntary No Don’t know 18.If you think there should be a voluntary system of accreditation, please provide detail of what the incentive should be for acquiring accreditation or the consequences for not being accredited. 19.If you think there should be a system of accreditation for private prosecutors, do you think this should be required at an organisational level or should it be a personal professional requirement for all individuals involved in bringing a prosecution? Organisational level Personal requirement Don’t know N/A 20.If you have any other thoughts about accreditation for private prosecutors which have not been captured in the questions above, please provide these. Chapter 2: Improving Safeguards to Justice in the Single Justice Procedure 21.Do you think that Single Justice Procedure prosecutors should be required to take steps to engage with the defendant before commencing a prosecution, to understand their personal situation (mitigating circumstances) and assess whether the prosecution is in the public interest? Yes No Don’t know 22.Do you think the prosecutor should be able to view the mitigating circumstances submitted to the court by a defendant before the case is reviewed by a magistrate? Yes No Don’t know 23.If you agree that the prosecutor should be able to review the mitigating circumstances before the magistrate reviews the case, do you think there should be a statutory requirement for them to review this in all cases, and conduct a further assessment of whether it is in the public interest to continue the prosecution, then confirm to the court that they have done this? Yes No Don’t know N/A 24.Should there be a requirement for prosecutors to allow a certain period of time for people to respond to an initial notification in order to provide details of any their circumstances prior to issuing an SJP Notice? Yes – please provide the period of time you think appropriate: 28 days No Don’t know 25.Should there be a requirement to send a certain number of written notifications before issuing a Single Justice Procedure Notice? Yes – please specify how many written notifications you think appropriate – three No Don’t know N/A 26.This question is for respondents responding to this consultation on behalf of an organisation that brings prosecutions through the Single Justice Procedure: do you currently engage with the defendant and request any information on their circumstances prior to commencing a prosecution, including assessing their vulnerability? Yes – please provide details about the time and resource this involves No Don’t know 27.If you have any other thoughts about the SJP which have not been captured in the questions above, please provide these. Chapter 3: Improving Transparency 28.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to register with HMCTS prior to bringing a prosecution? Yes No Don’t know 29.If you agree that some or all private prosecutions should be required to register with HMCTS prior to bringing a prosecution, should this requirement apply to (please select one): All organisations bringing private prosecutions Only those bringing a certain number of private prosecutions (please specify what you think this number should be) Only those private prosecutors who are defined using a different measure, other than the number of prosecutions they bring (please specify what you think this should be) N/A 30.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to publish their own data on the prosecutions they bring? Yes No Don’t know 31.If you think some or all private prosecutors should publish data, what data should they be required to publish? Number of prosecutions brought per year Offence types of prosecutions brought Resulting number of convictions Number of defendants who pleaded guilty Equalities data Other, please state – There should also be a requirement for private prosecutors to publicly report overall costs of the prosecution, whether they settled their costs via the compensation funds, any judicial criticism, formal reprimands or negative rulings arising from their conduct in prosecutions. Don’t know N/A 32.Do you agree that private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to assess their performance and/or regularly audit their own prosecutions? Yes No Don’t know 33.If you agree that private prosecutors should be required to assess their performance and/or regularly audit their own prosecutions, do you think this information should be published? Yes No Don’t know N/A 34.If answering on behalf of an organisation that brings private prosecutions: Does your organisation collect any data regarding the number of private prosecutions brought per annum? If so, please detail if your organisation publishes this data, as well as the time and resource costs of collecting (and if applicable publishing) this data. If your organisation does not collect or publish data, if possible please estimate how much time and resource collecting and publishing this data would require. Yes No Don’t know N/A 35.If you have any other thoughts about transparency in private prosecutions which have not been captured in the questions above, please provide these. Equalities Analysis Questions | |