Criminal Cases Review Commission invites Attorney General and Justice Select Committee to review role of private prosecutors

[35B]

The CPS (and only the CPS) should pursue prosecutions. So those staff responsible for conducting them should simply move to the CPS in these cases, but be under the CPS's control.

Accepting for the sake of argument that the CPS should be the only body that pursue prosecutions, I'm struggling to understand why matters should be arranged so that they must be the only body that pursues prosecutions.

 

[Llanigraham]

Actually, their investigative functions should be transferred to the Police. If it is that bad, then the Police would get involved. Local Councils in particular need to be massively pruned back!

I don't think you realise the intricacies of Government legislation!

 

[Haywain]

DVLA will only prosecute where a vehicle has been found on a public road without tax by one of their inspectors, and even then will usually only do it where there's evidence of fraud (e.g. declaring a car SORN then leaving it on a road). They don't send prosecution notices out to people who have merely forgotten to renew their tax by a few days.

The first I knew of an incorrectly dated cheque for renewal of my car tax was the summons to appear in court for non-payment. While this was some years ago it does not give me confidence that your statement is correct.

Indeed the example of the doughnutting banker, who was able to settle out-of-court despite a serious and long-running fraud, shows where their priorities lie.

Are you aware that HMRC frequently settle out of court for very large amounts?

 

[Bletchleyite]

Accepting for the sake of argument that the CPS should be the only body that pursue prosecutions, I'm struggling to understand why matters should be arranged so that they must be the only body that pursues prosecutions.

Well, you've seen how badly the TOCs abuse their ability to do it.

 

[Tetchytyke]

The first I knew of an incorrectly dated cheque for renewal of my car tax was the summons to appear in court for non-payment. While this was some years ago it does not give me confidence that your statement is correct.

These days they will usually issue an automatic £80 civil penalty rather than going down the prosecution route, but they will issue a reminder before issuing the penalty. A lot of things changed with the change to electronic car tax. My more recent experience (and DVLA are a regular at work, as you can imagine) is that prosecution only really happens when your car has been spotted on a road and has been seized; that tends to be where someone has declared their car SORN when it isn't, or where the car tax lapsed a long time ago.

Are you aware that HMRC frequently settle out of court for very large amounts?

It depends on the nature of the offence. HMRC will make settlements where what is disputed is how much tax was owed, as you see with settlements arising from aggressive tax planning schemes. On the flip side, HMRC will also waive tax or write off debts sometimes, such as when a tax debt arises from failure to submit self-assessment tax returns and the customer would otherwise have owed no tax.

But HMRC will aggressively pursue people who have actually defrauded the revenue: they will prosecute people, they will apply for bankruptcy (even where there are no assets to realise), and they will ask the Official Receiver to put Bankruptcy Restrictions Orders in place. People regularly go to prison for defrauding the revenue.

What HMRC don't, in my experience do, is say "you've underpaid tax by four quid, so give us £500 or we'll prosecute you".

 

[Tetchytyke]

However, my understanding of the reporting of that case suggests a problem with the effective monopoly of the Crown in terms of running prosecutions, and a disinclination to accept challenge. Creation of effective monopoly powers makes me very uneasy.

In England and Wales, the Crown can take over any private prosecution at any time, and discontinue them if they consider it to be in the public interest. This "monopoly" has existed for a very long time.

In terms of the criminal law, there should be this level of oversight. I don't see the issue with a "monopoly" where the criminal law is involved.

There are no such restrictions in the civil law, and again rightly so.

My view remains that ticketing issues should be resolved through civil litigation and not through criminal litigation, except in cases where there is a clear intent to defraud. And, in those cases, the correct investigation route would be via the BTP and then the CPS.

 

[ainsworth74]

My view remains that ticketing issues should be resolved through civil litigation and not through criminal litigation, except in cases where there is a clear intent to defraud. And, in those cases, the correct investigation route would be via the BTP and then the CPS.

Agreed. I have yet to be persuaded that a criminal prosecution is an equitable or just way of disposing of these matters. To go back to my previous example given of a passenger from Middlesbrough to Longbeck changing their mind and going to Marske. That person would be liable to a byelaw prosecution and, quite possibly, a RoRA S5 prosecution all over a fare of precisely £0.00 having been evaded. In what universe would that be just or fair?

If someone is fiddling a ticket to change the date, or has made their own travelcard or e-ticket, or is donutting over a period of many months (or was years?) then absolutely chuck the book at them and do them for fraud. But that's not the majority of cases and I don't see that the majority of cases warrant a criminal prosecution.

 

[Skie]

The prevalence of discounted payments and, frankly, bullying tactics to get people to pay them to avoid court action has turned the entire system into a massive machine that just generates revenue for everyone but the legal system itself. The parking sector was regulated almost out of existence around 10 years ago, but like cockroaches they have survived and use these bullying tactic fairly heavily, though with less legislation on their side they tend to not take anyone to court despite repeated threats. It's just much easier for the average person to stump up £60-£150 than deal with a day in court. Especially when there is essentially a punishment for going to court if you lose: Loss of the 'discount', the awarding of costs against you and in some cases more points on your driving license or other endorsements than if you'd just ticked a box and sent a cheque.

It doesn't feel like a justice system. And the worry is, as we've seen with the railway, there is more incentive to get people processed and collect the fines than actually delivering justice to those really worthy of a day in court, and that can mean a lack of evidence when the system becomes lazy. Plenty of cases of incorrectly configured speed cameras that had no legal basis of operating that only came about because someone bucked the trend and went to court, but anyone who ticked the box and paid the fine wont see a penny back.

Zero losses are something that no court should entertain. It's farcical that you can pay more in fees than what your alleged transgression has cost the company. And does reinforce the point that it's just become a money-spinner.

As to fixing it: In the first instance I'd like to see it made a legal requirement to log, publicly, the numbers of private prosecutions threatened. And of those how many were settled, dropped, paid or went to court with the same detail about court actions. £ values included, too. Get that data and expose the scale of the problem, and then push through legislation to stop the bullying/threatening tactics. Make it so the mere act of demanding money due to a breach has to come from someone actually trained in law, push up the costs and make the companies involved much more likely to scale back the operations.

 

[tspaul26]

Correction noted - thanks. However, my understanding of the reporting of that case suggests a problem with the effective monopoly of the Crown in terms of running prosecutions, and a disinclination to accept challenge. Creation of effective monopoly powers makes me very uneasy.

In England, the Code for Crown Prosecutors has a two-stage ‘Full Code Test’ which must generally be satisfied before a prosecution is led: (1) the evidential stage and (2) the public interest stage.

The evidential stage asks - in effect - whether there would be sufficient evidence to secure a conviction should the matter go to court? If not, there is no need to even consider whether prosecution is in the public interest.

In the Clarke case (i.e. the George Square bin lorry crash), the bill failed because of an insufficiency of evidence. The High Court did not need to even consider the public interest factors as to whether a private prosecution should have been allowed to proceed.

Per the Lord Justice Clerk:

[100] On an assessment of the whole evidence the Crown concluded that the evidence in each case, taken as a whole, was not sufficient to support the central propositions which required to be proved. In seeking to argue the contrary, the complainers [i.e. the prospective private prosecutors] advance a circumstantial argument dependent on inferences from other evidence which, in each case, is far from unequivocal. In neither case do we consider that the acts or omissions of the respondent [i.e. the accused], in the changed circumstances after the accident, allow inferences to be drawn as to the state of their knowledge at the time of the accident. We do not consider that the state of knowledge of either respondent can reasonably be elevated to the degree necessary to be capable of establishing beyond reasonable doubt that on the day in question they drove in the face of an obvious and material danger.

[101] The assessment of sufficiency in a circumstantial case is one which is highly fact-sensitive, and dependent on the drawing of inferences: it is one in respect of which there may be room for differing views within the scope of a reasonable exercise of professional judgement. As we have already indicated, it is quite difficult to conceive of circumstances in which the court would pass a bill where the Lord Advocate had examined and investigated the circumstances of the case and concluded as a matter of informed professional judgement that the whole tenor and weight of the evidence did not justify prosecution, unless in making that decision the Lord Advocate had acted oppressively, capriciously, or wantonly.
...

Had the case arisen in England and the insufficiency of the evidence been raised, the Director of Public Prosecutions would in my view almost certainly have intervened to discontinue the prosecution regardless of the public interest considerations.

To put the matter another way: if the evidence isn’t there then the public interest in prosecuting or not prosecuting is simply not relevant.

 

[35B]

Well, you've seen how badly the TOCs abuse their ability to do it.

I have, but that does not mean that I agree that the cure is appropriate to the disease.

 

[35B]

In England and Wales, the Crown can take over any private prosecution at any time, and discontinue them if they consider it to be in the public interest. This "monopoly" has existed for a very long time.

In terms of the criminal law, there should be this level of oversight. I don't see the issue with a "monopoly" where the criminal law is involved.

There are no such restrictions in the civil law, and again rightly so.

My view remains that ticketing issues should be resolved through civil litigation and not through criminal litigation, except in cases where there is a clear intent to defraud. And, in those cases, the correct investigation route would be via the BTP and then the CPS.

On the “monopoly“ point, there is a significant difference between the Crown having the right to intervene, and the Crown having to give it’s approval before an action can be brought. That is a general issue, which is to me above the question of what should happen to ticketing issues.

There, I agree that the powers of operators and their agents should be severely curtailed.

 

[Tetchytyke]

there is a significant difference between the Crown having the right to intervene, and the Crown having to give it’s approval before an action can be brought.

I do see what you mean, but if your fear is that governments will not pursue politically uncomfortable prosecutions, the right to intervene has the same outcome. I don't agree with your example of the bin lorry crash- it was correctly stopped in my opinion- but the original Hillsborough private prosecution would be another example.

My issue with private prosecutions is that those leading them are never distanced from the matter, and inevitably there is an ulterior motive. With the railways the ulterior motive is blatant and rampant profiteering. For private individuals it is often about revenge, as we saw with the regrettable case of Eleanor de Freitas being prosecuted by the man she claimed had raped her: https://www.google.com/amp/s/amp.th...osecutors-account-suicide-alleged-rape-victim. And for the likes of the RSPCA, it's a way to fill out those glossy fundraising brochures.

The civil courts are the place to deal with disputes about payments for a service. When even parking tickets, non-payment of road tolls and minor traffic infractions such as driving in bus lanes are dealt with in the County Court, it is madness that minor ticketing issues are a criminal matter.

 

[Haywain]

For private individuals it is often about revenge, as we saw with the regrettable case of Eleanor de Freitas being prosecuted by the man she claimed had raped her: https://www.google.com/amp/s/amp.th...osecutors-account-suicide-alleged-rape-victim.

You helpfully undermine the point you seek to make by providing a link to an article which states that the case against her was brought by the Crown Prosecution Service and not by a private individual.

 

[Tetchytyke]

You helpfully undermine the point you seek to make by providing a link to an article which states that the case against her was brought by the Crown Prosecution Service and not by a private individual.

Read it again, the prosecution was started by a private individual, who spent over £200,000 pursuing it before it was taken over by the DPP.

 

[kevconnor]

Rather than have a body such as CPS who need to bring the prosecution is there any merit in a system whereby the private prosecutor has to pay a statutory independent authority to assess and approve a prosecution before it can be submitted.

I was thinking something like the ACAS early conciliation process which is used in Employment Tribunals along with the fees which use to be in place. For Post Office / TOC / BBC to bring a private criminal prosecution they must firstly submit the case to be assessed based on some set criteria (such as public interest test, reasonable chance of success) the fee to have it assessed is payable by prosecuting authority and would be a sliding scale based on severity and complexity of case. An authorising certificate would approve the scope of the charges and would be time limited to when can be submitted to the courts.