The rise of private prosecutions
In the article, Spencer highlights the fact that once rare private prosecutions are becoming a more and more popular way for people to try and resolve disputes. This is due to a number of reasons, including a lack of resources within the police and Crown Prosecution Service (CPS). Indeed, private prosecutions are becoming so commonplace that specialist legal firms devoted to private prosecutions are springing up and existing law firms are setting up dedicated departments to meet increased demand.
Private prosecutions and the CPS
The first issue that solicitors defending a private prosecution must address is whether to ask the CPS to intervene either to take over the case, or in the ideal scenario from a defence point of view, drop it. However, in Spencer’s experience, the CPS can take a long time considering the evidential sufficiency and the public interest test and again, in no small part due to a lack of resources, have a tendency to resist getting involved unless they can see a very good reason for doing so.
Issues with private prosecutions
One common problem when defending a private prosecution is that the individual or business bringing the prosecution will have all the vital evidence such as business documents, communication records and meeting minutes in their possession. This means that they can control what gets passed to the defendant, who well may be unaware of all the relevant documents pertaining to the case. With no recourse to asking an independent officer to enter an office to seize relevant documents, the defence lawyer needs to ask their client to think carefully about what may not have been disclosed, as well as what has been shared. Lawyers defending a private prosecution case are also likely to need to make applications to the court in order to check that the correct evidence has been disclosed. This is important because if this has not been done there can be grounds to stay proceedings.
Another issue defence lawyers need to be aware of is the fact that the person bringing the prosecution is very often also the key witness for the prosecution. Again, the possible conflict of interest involved in this can also give grounds to stay, although recent decisions show that the judicial mood seems to be moving away from this as an option.
There are also potential issues with the motivation behind a prosecution brought by an individual or company, as opposed to one brought by the CPS that need to be taken into account by the defence lawyer.