Consultation Questions Form - Private Prosecutors' Association

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Re Chapter 1: Code for Private Prosecutors

Q1. Please make any comments you have on this chapter below.

Re Chapter 2: Client engagement

Q2. Please make any comments you have on this chapter below.

Re Chapter 3: Investigation

Q3. Re 3.2.1: the CPIA mandates that those “charged with the duty of investigating” pursue all reasonable lines of inquiry, whether they point towards or away from the suspect. Not all private prosecutors will fall within this definition. The Draft Code envisages a revised test, not embodied in legislation, but which we consider to represent best practice. Do you agree with the test as stated?

Yes
No

If not, what alternative would you propose?

Q4. Re 3.5.2: Section 34(4) of the CJPOA provides that an adverse inference can be drawn where a suspect, when questioned by a person other than a constable charged with the duty of investigating an offence, fails to provide answers which s/he later relies upon in her/his defence. The extent to which a private prosecutor comes within section 34(4) may vary in different circumstances. Do you feel that paragraph 3.5.2 of the Draft Code, as drafted, adequately addresses this point?

Yes
No

Q5. Re 3.9.2: It is unclear to what extent, particularly having regard to the Police Act 1996, law enforcement agencies are able to enter into agreements with private citizens or entities to provide services relating to the investigation or private prosecution of criminal conduct. The Draft Code is not intended to opine on this question. However, it recognises the importance of transparency where any such arrangement is entered into. Do you consider the inclusion of this paragraph is appropriate in the circumstances?

Yes
No

Q6. Please make any additional comments you have on this chapter below.

Re Chapter 4: Disclosure

Q7. Re 4.1.3: Do you agree that a disclosure management document should be produced in most private prosecutions?

Yes
No

Q8. Re 4.2.3: Do you agree that material which is subject to LPP must be listed on a disclosure schedule by a private prosecutor?

Yes
No

If so, which schedule: the sensitive or non-sensitive schedule?

Sensitive schedule
Non-sensitive schedule

Q9. Please make any additional comments you have on this chapter below.

Re Chapter 5: Charging and commencing proceedings

Q10. Re 5.1.1: Do you agree that, at the end of the investigation, a private prosecutor should consider whether there is any merit in referring the case to be brought by way of private prosecution to a public prosecuting authority at that stage?

Yes
No

Q11. Re 5.1.2: Do you agree with the way in which the Draft Code envisages the Full Code Test should be applied in the context of a private prosecution?

Yes
No

If not, please set out how you consider it should be applied, giving reasons.

Q12. Re 5.3.1 and 5.5.6: Do you consider there to be any obligation on a private prosecutor to inform the Court at the time of laying the information if either: a. The private prosecutor has not referred the case to a state agency; or b. A state agency has declined to accept the case?

If so, should this be mandated by the Draft Code?

Yes
No

Q13. Please make any additional comments you have on this chapter below.

Re Chapter 6: Referral to the Director of Public Prosecutions

Q14. This chapter includes information about referrals to the DPP by way of background which does not prescribe specific behaviour or conduct. Do you consider this is helpful to understanding the Draft Code, or is it unnecessary?

Helpful to understanding the Draft Code
Unnecessary

Do you think the level of detail is appropriate

Yes
No

If not, what level of detail do you think is appropriate?

Are there any behaviours or conduct which should be prescribed here?

Q15. Please make any additional comments you have on this chapter below.

Re Chapter 7: Abuse of process

Q16. This chapter includes information about abuse of process by way of background which does not prescribe specific behaviour or conduct. Do you consider this is helpful to understanding the Draft Code, or is it unnecessary?

Helpful to understanding the Draft Code
Unnecessary

Do you think the level of detail is appropriate

Yes
No

If not, what level of detail do you think is appropriate?

Are there any behaviours or conduct which should be prescribed here?

Q17. Please make any additional comments you have on this chapter below.

Re Chapter 8: Interaction between civil and criminal proceedings

Q18. Re 8.3.1 and 8.8.1: The Draft Code refers to the impropriety of bringing, or threatening to bring, private prosecutions solely as a strategic tool to add leverage to a party’s position in civil proceedings. This is based on the judgments in R (Dacre) v City of Westminster Magistrates’ Court [2009] 1 Cr App Rep and R (G) v S and S [2017] EWCA Crim 2119. However, many practitioners, as well as those acting for defendants have continuing concerns about the extent to which private prosecutions are/can be used for this purpose. Do you think the Draft Code as drafted appropriately/sufficiently addresses this issue?

Yes
No

Q19. Re 8.8.1: The Draft Code is silent as to the appropriateness of discontinuing proceedings if the accused settles related civil proceedings and/or pays compensation/makes reparation to the victim. Do you think that the Draft Code should address this point?

Yes
No

If so, do you think it is or is not appropriate to discontinue proceedings in such circumstances and what is relevant/not relevant to this consideration?

Q20. Please make any additional comments you have on this chapter below.

Re Chapter 9: Trial

Q21. Re 9.3.1 and 9.3.2: Do you feel this is the appropriate procedure to be adopted in these circumstances?

Yes
No

Re Chapter 10: Sentencing, confiscation and ancillary orders

Q23. This chapter includes general information about sentencing, confiscation and ancillary orders which is not specific to private prosecutions and/or does not prescribe specific behaviour or conduct. Do you consider this is helpful to understanding the Draft Code, or is it unnecessary?

Helpful to understanding the Draft Code,
Unnecessary

Do you think the level of detail is appropriate

Yes
No

If not, what level of detail do you think is appropriate?

Are there any behaviours or conduct which should be prescribed here?

Q24. Please make any additional comments you have on this chapter below.

Re Chapter 11: Costs

Q25. Please make any comments you have on this chapter below.

Re Chapter 12: Communications with press and media

Q26. Please make any comments you have on this chapter below.

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