Post Office scandal: UK government to improve regulation to avoid miscarriages of justice
The Post Office Scandal is described as one of the worst miscarriages of justice in legal history. Evidence submitted to the Post Office Horizon IT Inquiry highlighted the failings in the private prosecution of over 700 Post Office operators who were wrongfully convicted of theft and false accounting. In response, the Ministry of Justice has launched a consultation on private prosecutions seeking to improve accountability and transparency in the system.
Private prosecutions allow individuals or organisations to bring criminal proceedings independent of the police and public prosecuting authorities. Experts have raised concerns over the proliferation of private prosecutions in the past 10 years while significant funding cuts to the police and Crown Prosecution Service (CPS) have limited their ability to investigate and prosecute crimes. There is no public central database on the number of prosecutions brought by private prosecutors, and there is no duty on private prosecutors to publish data on the prosecutions that they bring.
The government said that it wants to introduce increased regulation for private prosecutions brought by organisations and agencies to ensure they meet the same standards and expectations of public prosecutors. The Ministry of Justice has proposed introducing a binding code of conduct and system of accreditation, a public register of all private prosecutors in England and Wales and clear consequences and sanctions for those who fail to uphold the required standards.
Gareth Minty, a partner at Mishcon de Reya, is chair of the Private Prosecutors’ Association. The association is made up of roughly 150 professionals with expertise in private prosecutions and has published its own code of conduct to provide a benchmark for best practice in private prosecutions. Minty welcomes the consultation and says that a mandatory code of conduct is necessary to ensure private prosecutions are fair and in the public interest. ‘Another thing we are hugely supportive of is much better data in relation to private prosecutions. By way of example, there’s a lot of uncertainty about how many cases get referred to the CPS [which has the power to take over or discontinue private prosecutions] and the outcome of those referrals,’ he says.
Especially in cases where the private prosecutor is responsible for prosecuting large numbers of low-income defendants, there must be additional safeguards to ensure that defence rights are protected
Miranda Ching
IBA Criminal Law Committee
Apart from the Post Office scandal, notable examples of private prosecutor failures include the thousands of convictions for railway fare evasion that were quashed following a ruling in 2024 that the prosecutions were brought unlawfully. As noted by the Ministry of Justice in the consultation, these cases have caused widespread public concern over the potential for abuse in private prosecutions and the inequality of arms between wealthy corporate prosecutors and individual defendants.
Miranda Ching, a partner at Kobre & Kim and an officer of the IBA’s Criminal Law Committee, believes that it makes sense for organisations such as the Post Office to be more strictly regulated because of the potential impact they have on members of the public who are often vulnerable. ‘Especially in cases where the private prosecutor is responsible for prosecuting large numbers of low-income defendants, there must be additional safeguards to ensure that defence rights are protected, especially in circumstances where defendants cannot afford their own legal representation’.
Ching, a former case controller at the Serious Fraud Office who acts for clients bringing private prosecutions, says that private prosecutions should be kept because there are ‘gaps within the justice system that can be remedied by lawyers and organisations other than the CPS’.
Anoushka Warlow, a partner in BCL’s financial crime practice who acts for defendants in private prosecutions, says that private prosecutions will always carry an inherent risk of conflict of interest because the prosecutor is likely to be the alleged victim of the crime. ‘A private prosecutor will often have a personal interest in the outcome of the case, and that personal interest may well affect their ability to discharge their obligation to act, amongst other things, with objectivity and impartiality’.
Private prosecutions initially cost a large amount of money upfront, but private prosecutors can reclaim costs, if the case was brought legitimately, from central funds, whereas defendants, even if acquitted, are only able to recover legal aid rates for what they spent on the case. ‘There remains a question of whether private prosecutions are the most suitable forum, or whether the focus should instead be placed on properly resourcing public authorities in order that they can investigate and prosecute all appropriate cases of criminal wrongdoing,’ says Warlow.
Minty says that the Private Prosecutors’ Association questioned the government’s decision to exclude private prosecutions brought by individuals from the consultation. ‘PPA members, including those who have defended a number of private prosecutions, made the point that some of the most egregious cases recently have been brought by individuals,’ he says.
Minty says in the past 10 years and following the Post Office scandal, there appears to be greater public awareness about private prosecutions and the rights of defendants, and magistrates have started to subject applications to even greater scrutiny before granting summons for cases. ‘For example, one of the things most defendants in private prosecutions didn’t know is that you could refer the case to the CPS. Now that is universal knowledge,’ he says.
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