CODE FOR PRIVATE PROSECUTORS

2.

Client engagement

2.1

Introduction

2.1.1

In many cases, a private prosecution will be prepared and/or conducted, at least in part, by a firm or company that is external to the private prosecutor, such as a law, accountancy or private investigative firm. In those circumstances, this Chapter will apply.

2.2

Engagement

2.2.1

At or before the point of engagement, the private prosecutor must be informed of those issues that are specific to a private prosecution.

2.2.2

Those issues will include some or all of the following:

(1) Obligations as a Minister of Justice

1. That a private prosecutor is subject to the same Minister of Justice obligations as a public prosecuting authority, together with an explanation of what that means in practice;
2. That advocates and solicitors who have conduct of private prosecutions must observe the highest standards of integrity and of regard for the public interest. They have a duty to act as Ministers of Justice in preference to the interests of the client who has instructed them to bring the prosecution. They owe a duty to the Court to ensure that the proceedings are fair and that the case is dealt with justly;
3. That those acting on behalf of a private prosecutor must withdraw or refuse to act if they consider the prosecution to be improper or vexatious;

(2) Motive and Conduct

4. That the criminal justice system must not be used solely or primarily to achieve a purpose for which it is not designed – this will include an overview of the abuse of process jurisdiction (see Chapter 7);
5. That whilst a private prosecution does not have to satisfy the test in the Code for Crown Prosecutors, in practice, a solicitor or barrister is likely to advise against bringing a private prosecution if the Full Code Test is not met;

(3) Investigation and Disclosuret

6. That there is a requirement to retain material which may be relevant to an investigation and to schedule such material where it will not form part of the prosecution case;
7. A full explanation of the prosecutor’s disclosure obligations and the consequences of failing to comply with them;
8. That there are circumstances in which information/material will not be shared with the client/private prosecutor and where decisions (including disclosure decisions) will be made without reference to them;
9. The circumstances in which it may be necessary to waive or partially waive legal professional privilege in order for the proceedings to continue (or to stop proceedings if privilege is not waived) (see Chapter 4);
10. The difficulties that are likely to arise where defendants or material are located outside England and Wales, which will include requirements to comply with applicable local law;
11. That information about the investigative process may need to be withheld from witnesses to avoid tainting their evidence;
12. The role and obligations of any potential expert witnesses.

(4) The role of the Crown Prosecution Service (“CPS”) and/or Director of Public Prosecutions (“DPP”)

13. If an offence requires the DPP’s consent to prosecute, that the private prosecutor must seek that consent.
14. That a private prosecution may be referred to the Director of Public Prosecutions (“the DPP”) (or otherwise come to their attention);
15. That the CPS Legal Guidance on Private Prosecutions provides that a private prosecution should be taken over and stopped if, upon review of the case papers, the Full Code Test is not met;
16. The possibility that, following referral to the DPP, the proceedings will be taken over and continued by the CPS.

(5) Other

17. The circumstances in which a private prosecution can and cannot properly be terminated and the potential consequences in costs;
18. The confiscation and compensation regimes; and
19. The risks associated with pre-trial publicity.

2.2.3

The private prosecutor should be provided with accurate and comprehensive information about their responsibilities and the potential cost consequences of commencing a private prosecution. This should include:

1. the importance of having sufficient means to fund the case to its conclusion¹;
2. the circumstances in which costs may be ordered against the private prosecutor;
3. the circumstances in which costs may (or may not) be recovered from central funds or from a defendant; and
4. advice that, when determining the amount of costs that might be payable in a substantial case, the Court may consider what efforts have been made by the private prosecutor to examine competition in the market, test it and seek tenders or quotations before selecting the solicitor and advocate instructed².

2.2.4

The private prosecutor should be asked whether a report has been made to a relevant law enforcement agency and, if a report has not been made, the prosecutor should be advised that it has the option to do so. It should not be suggested that a private prosecutor must report a suspected crime to a state agency, but a decision not to do so should be properly recorded, with reasons, and the potential consequences of that decision explained. If a report has been made but the agency has declined to prosecute, the private prosecutor should be advised of the victim’s right of review process, the need to disclose to the Court (when applying for a summons) and the defence (thereafter) the fact that an agency has declined to prosecute, any reasons given for that refusal and the potential impact of that decision on a private prosecution.

2.2.5

The terms of engagement should provide for a preliminary assessment of the evidence in the case and the subsequent provision of advice on issues which may arise as a result of the private prosecutor’s more limited powers to obtain evidence pre-charge, for example, where material is held by a third party or overseas.

2.3

Instructions

2.3.1

In all cases, the issue as to which individual has authority to give instructions and receive advice on behalf of the private prosecutor at any point should be clearly defined in writing. This will include the giving of instructions on the acceptability of pleas.