Resources are strained across the UK justice system. There have been years of cuts to police funding and hourly rates for publicly prosecuting barristers are at an all-time low.
Police rightly focus their limited resources on priorities such as violent crimes, sexual offences and terrorism.
Meanwhile, it is estimated that £90bn ($118bn, €105bn) of dirty money is laundered through the UK each year, the cost of economic crime is estimated to be £14.4bn, and Suspicious Activity Reports (Sars) to the National Crime Agency (NCA) rose by 10% during 2017-2018.
It is against this background that interest in bringing private prosecutions is growing. For many, they offer access to justice in circumstances where the state lacks resources to investigate or prosecute.
Peters & Peters partner Hannah Laming and Kerri McGuigan, associate, break down what financial advisers and other professionals need to be aware of to best protect their clients.
Not without its issues
Private prosecutions can offer speed and efficiency when compared to public prosecutions.
But, experts and commentators in this field have also warned that they give rise to unique risks and ethical questions when compared with public prosecutions.
The conduct of public prosecutors is governed by legislation, codes of conduct and guidance.
However, it is not always mandatory for private prosecutors to follow such provisions; they are not always directly applicable and they do not necessarily cover issues which arise in the context of a private prosecution.
Mind the gaps
Below, we discuss three examples of lacunas [gaps] in existing provisions:
First, a private prosecutor has a duty to act fairly and impartially, as a minister of justice.
This means that a lawyer charged with bringing a private prosecution on behalf of a client must carefully balance this duty with their professional obligation to act upon the instructions of their client and in their best interests.
Tensions may arise, for example, where a client wishes to proceed with a private prosecution where their lawyer does not consider that the Full Code Test (which must be satisfied before a public prosecution can be commenced) is met or where the motive for bringing proceedings is improper or abusive.
Second, where the client is a victim or witness in the private prosecution, his communications with his criminal lawyers will be subject to privilege and would therefore ordinarily be protected from disclosure to the defendant.
However, a prosecutor (whether public or private) has an obligation to disclose to the defence any material which may reasonably be considered to undermine the prosecution or assist the defence. This can result in issues where material meets the test for disclosure but is also subject to legal professional privilege.
There is also a lack of consensus on how such material should be listed on disclosure schedules.
Third, private prosecutions are frequently run in parallel with civil proceedings, which can result in complexities arising from the different rules around disclosure and treatment of privileged material; the different treatment of witnesses and the need to consider how evidence has been obtained and the use to which it can be put.
Keep to the code
The Private Prosecutors Association (PPA) was founded in 2017 with a view to sharing and promulgating best practice in the field, including the establishment of a Code for Private Prosecutors (the code).
In setting it out, the PPA seeks to provide meaningful guidance to all practitioners in the field, including investigators, subject matter experts and financial professionals, and to establish a set of principles for the conduct of private prosecutions that can be relied upon by complainants, defendants and the courts.
The code is intended to be a benchmark for the proper conduct of private prosecutions.
It is aimed at helping practitioners to identify and resolve the types of issues identified above, leading to a consistency of approach, improving standards and increased public confidence.
It is hoped that the code will be successful in ensuring that both complainants and defendants have access to a fair and just system, protecting all parties from prejudice, and facilitating proper scrutiny of the ethical issues unique to this type of prosecution.
Many members of the PPA have worked collaboratively to create a draft code. This has been subject to a public consultation with a number of stakeholders specifically asked to consider providing their comments.
The association intends to publish a final code by the end of May 2019, and PPA members will be asked to confirm that they will abide by it as a condition of their membership of the organisation.
Hopefully, the code will endorse high standards of conduct in private prosecutions which will strengthen safeguards and address some of the concerns of raised by critics.
At a time when, understandably, neither the Crown Prosecution Service (CPS) nor the police have the bandwidth to pursue every criminal action, there is certainly an argument that they provide a valuable part of the legal toolkit for addressing criminal conduct.
This article was written by Hannah Laming, partner, and Kerri McGuigan, association, of Peters & Peters Solicitors.