Defending Private Prosecutions & Costs

Monday, 08 February 2021 | James Mullion

As a result of a combination of financial restraints and over-demand on the public purse, in recent years there is a marked trend and heightened consciousness towards private prosecutions being brought by members of the public.

A quick Google search for the term “private prosecution” will refer the prospective consumer to a whole host of firms offering their wares in this respect. Our very own Prime Minister, has himself been subject to a crowd-funded private prosecution for Misconduct in a Public Office. Illustrious firms advertise their prowess in this field to their wealthy client base and are themselves the subject of adulatory articles in our newspapers – offering perhaps a solution to the perceived public funding gap.

There are of course serious reservations about this new market: what are the motives behind the prosecutions? Who is funding them? Will the incentive to comply with the onerous duties of candour as a “prosecutor” be outweighed by financial and personal incentives? Will we see a raft of vexatious prosecutions? These are all issues that have recently come to the fore in several high-profile cases.

As a result, there is now some pushback against the trend. Misconduct in a Public Office, that vague, ill-defined and nebulous Napoleonic-era offence used so often in the past to bring prosecutions against anyone connected to public life has been the subject of a Law Commission recommendation that (aside from recommending clarifying the elements of the offence) calls for any prosecution to be subject to DPP consent. Such an imposition would of course take all future prosecutions of this kind away from the private prosecutor’s control.

In addition, early and vigorous challenges to the issue of the summonses in the Magistrates Court will serve at an early stage to scrutinise the various aspects of private prosecutions that give cause for concern and help to weed out improper conduct and vexatious prosecutions. Indeed, Janes Solicitors were recently instructed in a high-profile case where the summonses were withdrawn once it was challenged and the true nature of the prosecution became apparent.

One concern with private prosecutions that perhaps does not receive much sympathetic publicity, even though it is of the utmost concern to defendants, is on the issue of costs and the apparent disparity in status between a prosecutor and defendant.

The convicted defendant in a private prosecution will face not only a criminal sentence and confiscation order, but is also liable to pay for the costs of the prosecutor (section 18 Prosecution of Offences At 1985). If he/she/it cannot pay the costs, not to worry, the prosecutor’s costs will be met out of Central Funds on a “reasonably sufficient” basis (s.17 POA 85) – i.e. they will be assessed on a private basis. Indeed Fuseon Limited v Senior Courts Costs Office [2019] EWHC 126 (Admin) held that the costs claimed out of central funds by the prosecutor would not be derived from the CPS billing rates (provided certain initial steps had been taken before instituting private prosecution proceedings).

In addition, given that the Court of Appeal has affirmed the right of a private prosecutor to institute confiscation proceedings (see  R v Somaia [2016] EWCA Crim 2267) the private prosecutor may protect their financial position further by applying for a restraint order over a Defendants’ assets at the outset of proceedings (i.e. when the summons is issued).

Unfortunately, the same costs protections are not offered to a Defendant. Section 16 POA 86 allows for a “defence costs order” to be made out of central funds to the acquitted party but these will only be assessed on legal aid rates basis (rather than on a “reasonably sufficient” basis) and will thus represent a significantly reduced reimbursement than would be awarded to a successful prosecutor who had engaged private representation.

It is open to a Defendant to make an application under s.19 POA 86 for a costs order against the Prosecutor – if he is able to demonstrate an “unnecessary or improper act or omission”. Examples of such behaviour would include the falsification of evidence, failure to disclose relevant material and misleading the Court as to the strength of the case against the Defendant. Pretty serious stuff and usually the subject of challenge from the Prosecutor – in which case the Defendant will have to incur further costs to prove his case. If the successful defendant is unable to do so, he is liable to costs being awarded against him.

Another possibility is an application for an order under s.19A POA 85 against the prosecutor’s lawyers (a “wasted costs order”) or under s.19B against a third party where there has been “serious misconduct” by them causing costs to the Defendant. The bar in both of these applications is high, the Courts will generally be loathe to award costs against lawyers where they have been acting on instructions from their client and “serious misconduct” will by its very definition be rarely shown. Again, the potential costs liability to the successful Defendant will often outweigh the desire to press on with such an application.

Take the situation though where, joys of joys, the successful defendant obtains a costs order against the Prosecutor, again there is a disparity against the acquitted defendant when it comes enforcing any costs order he has obtained. Schedule 9 of the Administration of Justice Act 1970 distinguishes a costs order awarded against a Defendant as being enforceable on conviction – i.e. the Courts will themselves enforce any order made, to that in favour of an acquitted defendant – which will only be enforceable as a civil debt in either the County Court or High Court (thus placing a further costs burden on the acquitted defendant to enforce the debt).

In the Magistrates Court, a successful Defendant can apply to the Court under s.76 of the POA 85 for a warrant of control over a failed Prosecutor’s assets. However, although it is arguable to the contrary, the Magistrates are unlikely to issue a warrant of custody for an unpaid debt (which would be available were the debt order treated as an order made on conviction).

Further difficulties will arise in enforcing a costs order against a prosecutor if for example they are based abroad or have had their legal costs raised by a crowd-funding website. Quite how an acquitted defendant would pursue his costs against anonymous donors is unknown to this writer. Perhaps a production order against the website concerned will reveal the required identities but that is (a) likely to be strongly resisted and incur further costs and (b) it is not difficult for a careful donor to hide their identity when registering with the website.

Given the above disparities and the consequent difficulties in enforcing costs orders, what costs protection is available to the Defendant? It should in theory, given how costs orders awarded in favour of the defendant are treated as civil debts, be possible for them to obtain a security for costs order against the prosecutor.

However, due to the prevalence of court authorities that the relevant regime is for criminal costs, even if this were possible and the requisite conditions for such an application were in place (see CPR 25.13) would it not be a requirement for the applicant to demonstrate an arguable case under s.19 POA 86 (given that is the only basis upon which he can be awarded costs against the prosecutor)? That would seem very difficult in advance of any determination of the relevant acts or omissions. Also, the amount of any deposit required would also be a difficult calculation to make given that some reimbursement of costs is available to a Defendant under s.16 POA 85 albeit on public-funding rates.

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