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

[furlong]

Following the recent civil court judgements against the Post Office (POL):

The CCRC refers eight more Post Office cases for appeal – bringing total to 47 so far - Criminal Cases Review Commission

This release contains information about: Eight more Post Office cases to be referred by the CCRC bringing the total to

ccrc.gov.uk

Contact with Attorney General’s Office and Justice Select Committee

The CCRC has written to the Attorney General’s Office and to the Chairman of the Justice Select Committee proposing that a formal review should be conducted into when and how an organisation should be able act as a private prosecutor in cases where it is the victim as well as investigator of an alleged offence as the Post Office did in relation to the Horizon cases we have so far referred.

Paragraph 68 of the CCRC Statements of Reasons in cases referred to the Court of Appeal says:

“…in the context of POL’s combined status as victim, investigator and prosecutor of the offences in question – the CCRC considers that there are reasons for significant concern as to whether POL at all times acted as a thorough and objective investigator and prosecutor, ensuring that all reasonable lines of inquiry were explored. The CCRC further considers that this concern applies to POL’s approach throughout the period 2001 to 2013, that is, the timespan of the convictions which are considered in this Statement of Reasons.”

We have said to the Attorney General and the Chairman of the Justice Select Committee, that, while the Post Office Limited’s combined status as victim, investigator and prosecutor is not part of the legal basis of our referrals to the appeal courts, the CCRC is firmly of the view that a formal review should be conducted into when and how it ought to be permissible for prosecutions to be brought in such circumstances.

While nothing should be allowed to detract from the scale of the Post Office's alleged misbehaviour which appears to be in a class of its own, people with knowledge of suspected abuses of process regarding railway prosecutions might similarly consider whether now would be an appropriate time to make similar contact (e.g. via their MPs) in support of such a review to include railway prosecutions.

 

[VauxhallandI]

Maybe a petition would be effective?

 

[Bletchleyite]

Maybe a petition would be effective?

They rarely are.

TBH, I'd like to see all private prosecutions banned. Scotland does pretty well without them.

 

[VauxhallandI]

I’d wager more people would sign a petition than sit down and craft a letter to their MP.

 

[furlong]

This isn't really about a petition, though that might raise the profile of some of the problems. This is about finding good examples where a disinterested observer would consider the railway to have acted unfairly. Like the railway prosecuting over minor technicalities where it has not lost money (ref. today's oyster thread), failing to act impartially and disclose evidence that might undermine its case (the P.O. is accused of that in press articles today), inviting people to 'settle' out of court for arbitrary sums where there would be no case to answer in court - even after this has been pointed out to them etc.

 

[VauxhallandI]

Yes I see, maybe a combination then.

 

[WesternLancer]

I’d wager more people would sign a petition than sit down and craft a letter to their MP.

Which is why petitions are generally ignored....(sadly)

 

[Llanigraham]

They rarely are.

TBH, I'd like to see all private prosecutions banned. Scotland does pretty well without them.

So how would the likes of BT, the power companies, local Governemt, Governent Departments, etc take a prosecution?
Are you proposing a huge increase in the manpower at the CPS?

 

[Tazi Hupefi]

Of course, it's my understanding that private prosecutions were historically, and until comparatively recently, the standard practice in England. The CPS or a formal prosecuting agency being a relatively new concept.

Private prosecutions are naturally regulated - in that a judge/justice of the peace (sometimes a jury) is ultimately the arbitrator on the matter. The prosecutor is simply explaining their complaint and their evidence to the court.

If the complaint is without merit, or without sufficient evidence, the court must find the accused, not guilty.

If forum members are saying people are being wrongly convicted, then surely that's the problem with the judiciary, not the prosecutor. A comprehensive appeals process exists to correct these sort of errors.

I'm sure that there are probably many thousands of successful and correct railway prosecutions each year - and likely single figure percentages where this goes wrong. However, even CPS led cases have occasionally dubious cases.

My view may be that asking for an out of court settlement isn't great practice, and everyone should be brought before a court - but that doesn't really help the defendant, and in any event, the prosecution costs will probably be ordered anyway. Offering a civil remedy is probably overall a sensible approach.

I'd also comment that Scotland does not necessarily do pretty well without them - because ultimately - if the Crown won't support you - you have absolutely no chance of justice. At least in England, you can have your day in court, and someone will at least consider your complaint.

Finally, let's say a TOC used the civil procedures instead - and dealt with this stuff at the County Court. You'd end up with people on here with arguably more damaging CCJs, bailiffs, statutory demands, bankruptcy hearings etc - as well as the impact adverse credit can have for 5-6 years. There's also a far lower burden of proof in these courts. At least in a criminal Byelaw case, you're not going to get a criminal record, and the TOC has to at least meet the criminal standard of proving guilt.

 

[ainsworth74]

Finally, let's say a TOC used the civil procedures instead - and dealt with this stuff at the County Court. You'd end up with people on here with arguably more damaging CCJs, bailiffs, statutory demands, bankruptcy hearings etc - as well as the impact adverse credit can have for 5-6 years. There's also a far lower burden of proof in these courts. At least in a criminal Byelaw case, you're not going to get a criminal record, and the TOC has to at least meet the criminal standard of proving guilt.

There is still a subtle difference. To take an extreme example lets say tomorrow afternoon I decide I want to go from Middlesbrough to Longbeck one way for the fun of it. I buy my single ticket costing £4.40 and off I go. Whilst on the way I decide that actually I'd rather get off at the next station Marske which is about 800m further down the line from Longbeck (timetabled to take two minutes). Unfortunately when I get off there's a revenue block at Marske and as I have over travelled on my ticket I am reported for a prosecution certainly for a Byelaw offence and quite probably for a Regulation of Railways Act offence too.

The total fare evaded in this case? £0.00. The fares between Middlesbrough and Longbeck and Middlesbrough and Marske are identical.

Now like I say that's an extreme case but you don't have to look to far to find people being prosecuted over 'evaded' fares worth pennies or at the very least only a few pounds. Heck we currently have a case running on this Forum where someone is being prosecuted over a fare 'evaded' of £0.00.

Is a private criminal prosecution under either the Byelaws (or more seriously RoRA) really equitable and just in such circumstances?

 

[furlong]

Exactly. IMHO Many train companies seem to have become bolder and lost their sense of proportion and restraint and rather than focussing solely on the people who are clearly trying to get away without paying what they should (but who may be harder to catch), they've realised there's an easier revenue stream from inflated settlements from people willing and able to pay but who fall foul of some technicality of which they were unaware or to which the railway itself contributed. I'd contend that a number of these cases would have a good chance of being defended successfully in court, but people aren't able to pay for the legal advice they would need and don't want to take the risk and even some with good defences plead guilty because they trust what the railway tells them and don't know any better.

 

[sheff1]

Private prosecutions are naturally regulated - in that a judge/justice of the peace (sometimes a jury) is ultimately the arbitrator on the matter. The prosecutor is simply explaining their complaint and their evidence to the court.

Not if the case never goes to court because a passenger who has actually committed no offence is pressurised into 'settling' the matter via some sort of fee paid to the TOC which is threatening prosecution if that fee is not paid.

 

[Tazi Hupefi]

Well I'm afraid I have no sympathy with that arguement.

Either you accept the out of court settlement offer (voluntarily) or you don't - and if you don't feel as though you've broken the law, guilt or innocence can be independently determined by the judiciary. If an Inspector, probably multiple people within a TOC Prosecution Department and 3 Magistrates and a maybe even a legal advisor or a professional District Judge all think you're guilty of an offence, (and possibly another professional judge for an appeal) - then you'd have to be pretty damn unlucky. Or actually guilty!

Are you genuinely saying that it would be a better situation for TOCs to proceed straight to court? Bearing in mind, the vast, vast majority of potential prosecutions in this manner will be for actually guilty offenders, (giving them a final warning in essence, and are probably appreciate they have a chance to learn from their previous actions without a court appearance).

Are people really pressured? Everything I've read on this forum seems to suggest the opposite. TOC sends one or two fairly factual letters. If people pay up, it's not because the TOC has pressured them. If you want to see pressure, default on a loan or credit card and see how many letters and threats you get then! TOCs seem positively tame - and importantly - the criminal rules means it's settled relatively quickly (under 6 months). You've not got years of debt collectors etc!

 

[Sherlock49]

If the TOCs use the civil courts like almost every other private business, as a defendant, you can take the matter to court in the knowledge that if you lose, you have the option of paying within 28 days and the matter is considered settled with no long term effect on you. If you think you have a good case in criminal court, you don't have this option, you're taking a much bigger gamble the court will agree with you.

It's undeniable that many will pay up to avoid a criminal record, particularly where a criminal record has perceived impact on employment. There are numerous threads on here of prosecutions which have been discontinued after advice from helpful forum members but how often do people just pay up because of the threats even though they have a good case?

It's an imbalance of power, and I don't trust TOCs to utilise their discretion in bringing criminal prosecutions. I remain to be persuaded that TOCs should be treated any differently to any other private company in this respect. The only other industry that works in a similar way is TV Licensing (to my knowledge) but that's essentially tax collection.

Obviously the situation is different with intentional fraud but no reason the CPS and police shouldn't be dealing with that anyway.

 

[Haywain]

I remain to be persuaded that TOCs should be treated any differently to any other private company in this respect.

TOCs are treated in the same way as other private companies, it's just that the majority of other companies choose not to take out private prosecutions.

 

[Sherlock49]

TOCs are treated in the same way as other private companies, it's just that the majority of other companies choose not to take out private prosecutions.

I'm not sure they do - if I buy a ticket I think is appropriate for my journey but the train company disagree, they have the option of prosecuting me and being able to threaten me with the consequences of a criminal conviction. If I have a dispute with Virgin Media about my bill, they don't have this option.

 

[Tazi Hupefi]

But again, there is no "gamble". Anyone who thinks there's a gamble clearly has some doubt as to their innocence.

If you are innocent, you refuse the settlement and go to court. An awful lot of people have to be convinced of your guilt to be convicted.

If you think those people made a mistake, you appeal to a higher court.

If you get found guilty, then surely the TOC was actually doing you a favour by trying to give you the opportunity not to be in court in the first place!

Anyone who accepts a out of court settlement which is made clear is only voluntarily, whilst they are sure of their innocence only has themselves to blame!

It is not the fault of a private company, be it the RSPCA, TV Licensing or train companies how the justice system works.

TOCs aren't fitting people up in court, or manufacturing/ hiding evidence! The judges aren't bent or paid off are they?

 

[Haywain]

I'm not sure they do - if I buy a ticket I think is appropriate for my journey but the train company disagree, they have the option of prosecuting me and being able to threaten me with the consequences of a criminal conviction. If I have a dispute with Virgin Media about my bill, they don't have this option.

Train companies have the benefit of specific law covering offences, but Virgin Media could certainly prosecute in the courts if they believed you had committed a relevant offence.

 

[Tazi Hupefi]

I agree, such as if you criminally damaged their property, e.g. cutting a Virgin Media cable deliberately.

They could send you a letter asking for an out of court settlement and advising you that it's only voluntarily. However, if you choose not to pay, they will present their case in a criminal court. If you didn't cut the cable, you'd go to court, and be found not guilty.

If you did cut it, you'd be stupid not to accept the out of court settlement.

They, could, of course tell the local constable, and let them deal with it, but they don't have to. Arguably, low level offending should be dealt with privately, between the parties concerned. Would stop the police being tied up with petty matters.

 

[35B]

But again, there is no "gamble". Anyone who thinks there's a gamble clearly has some doubt as to their innocence.

If you are innocent, you refuse the settlement and go to court. An awful lot of people have to be convinced of your guilt to be convicted.

If you think those people made a mistake, you appeal to a higher court.

If you get found guilty, then surely the TOC was actually doing you a favour by trying to give you the opportunity not to be in court in the first place!

Anyone who accepts a out of court settlement which is made clear is only voluntarily, whilst they are sure of their innocence only has themselves to blame!

It is not the fault of a private company, be it the RSPCA, TV Licensing or train companies how the justice system works.

TOCs aren't fitting people up in court, or manufacturing/ hiding evidence! The judges aren't bent or paid off are they?

You assume equality between individual and company. Whilst legally true, the reality is that the company will employ people whose job it is to pursue these cases, while the individual will have to find time to address the case against them, at potentially disproportionate cost to themselves. Those employed to deal with cases will be trained in how to operate them; the individual on the receiving end will very probably be feeling their way in an unfamiliar area of law and in the knowledge that if they lose, the effect of early plea discounts is to load the consequences against themselves. When you get firms with reputations like TIL, as with the very weak cases reportedly brought by the RSPCA, the engagement with the private prosecutor is intimidating even to the innocent. Gambling is a reasonable analogy.

These are significant factors, regardless of the facts of an individual case - as has been illustrated in a number of threads on here.

 

[furlong]

But again, there is no "gamble". Anyone who thinks there's a gamble clearly has some doubt as to their innocence.

If you are innocent, you refuse the settlement and go to court. An awful lot of people have to be convinced of your guilt to be convicted.

If you think those people made a mistake, you appeal to a higher court.

If you get found guilty, then surely the TOC was actually doing you a favour by trying to give you the opportunity not to be in court in the first place!

Anyone who accepts a out of court settlement which is made clear is only voluntarily, whilst they are sure of their innocence only has themselves to blame!

It is not the fault of a private company, be it the RSPCA, TV Licensing or train companies how the justice system works.

TOCs aren't fitting people up in court, or manufacturing/ hiding evidence! The judges aren't bent or paid off are they?

As a counter-example, I just refer you back to the situation with the Post Office where it appears now that many innocent people might have paid settlements to avoid prosecution, other innocent people might have pled guilty on advice of their lawyers to reduce their sentences, and other innocent people might have put up a defence but still got convicted and many were jailed. It seems we could be talking about as many as 1000 people.

Albeit with a lower level of "offence" so nothing like that level of consequence for the individual victims though it might possibly be happening on a larger scale, a similar attitude to prosecution appears to be endemic at some TOCs.

 

[Tazi Hupefi]

As you say, what I put, is legally true.

I don't know what company TIL is (Trainline?) but regardless of their reputation, if they win cases, however strong or weak they are, they clearly were able to demonstrate to the extent required by law, so ultimately they aren't actually as weak as you think.

I'm not aware of, but is there a large proportion of cases with people being found "not guilty" in railway matters? If not, I'd say that's a fair indicator that the prosecutors are actually good at what they do, or people aren't turning up to dispute what the company alleged.

The issues raised about it costing money for the average person to attend court etc and defend their case are perfectly valid - but not the fault of the TOC. It seems like you want reform to court procedures, e.g. prosecution liable for costs, rather than a ban on private prosecutions.

Given the railway has a private police force, in any event, banning private prosecutions would almost certainly just see some of those end up with railway police, which is arguably worse.

 

[Tazi Hupefi]

If people plead guilty to anything they definitely haven't done - whether Post Office or fare evasion - that's their lookout.

Nobody forced them to! They are gambling with the criminal justice system, controlled by government and the judiciary, not the prosecutor/rail company!

I also don't think it's a fair comparison between Post Office and rail companies. It seems the Post Office actively hid evidence and it was a set up. As bad as some of the operators may be, I don't think anyone is being fitted up!

 

[Haywain]

the criminal justice system, controlled by government and the judiciary,

The criminal justice system is not "controlled by the government", we have an independent judiciary.

 

[furlong]

I doubt anyone is seriously talking about a ban on private prosecutions at this stage. This is about an inquiry to find better ways to deal with situations where they may - in practice - be unfair, and some of the underlying causes may be similar - in particular failing to consider at an early stage what evidence might exist that could help the defendant and actively taking steps to obtain and provide it.

 

[packermac]

If people plead guilty to anything they definitely haven't done - whether Post Office or fare evasion - that's their lookout.

Nobody forced them to! They are gambling with the criminal justice system, controlled by government and the judiciary, not the prosecutor/rail company!

I also don't think it's a fair comparison between Post Office and rail companies. It seems the Post Office actively hid evidence and it was a set up. As bad as some of the operators may be, I don't think anyone is being fitted up!

I think you will find many of those sub postmasters were in effect forced, by threats from the Post Office but that is thread drift. I also dispute your earlier pints that courts are "no gamble". Courts interpret written laws, not always correctly, as do lawyers who tell clients to proceed or settle. For example my former employer spent many years and much money trying to sue its own pension scheme trustees, and only decided a few days before a Supreme Court hearing (yes they took it that far) to just walk away. Yet all along to that point their advice would have been they would win.
Also if you read many of the dispute threads TIL seem to bully people by ignoring the facts of what happened.

 

[Haywain]

I doubt anyone is seriously talking about a ban on private prosecutions at this stage. This is about an inquiry to find better ways to deal with situations where they may - in practice - be unfair, and some of the underlying causes may be similar - in particular failing to consider at an early stage what evidence might exist that could help the defendant and actively taking steps to obtain and provide it.

The Post Office case (based on information gleaned from the Panorama programme earlier in the week) appears to revolve around a failure to disclose what they knew about the evidence being 'dodgy' - notably information about flaws in their Horizon system - and the fact that they had investigated those they accused and found little evidence of the money that was allegedly stolen being disposed of in any way.

 

[35B]

The Post Office case (based on information gleaned from the Panorama programme earlier in the week) appears to revolve around a failure to disclose what they knew about the evidence being 'dodgy' - notably information about flaws in their Horizon system - and the fact that they had investigated those they accused and found little evidence of the money that was allegedly stolen being disposed of in any way.

An issue that has affected private and crown prosecutions alike - as reported repeatedly of late. Though rarely (and I'm going from Private Eye coverage of the Horizon scandal) with the perjury laws at risk of being involved.

 

[typefish]

Now like I say that's an extreme case but you don't have to look to far to find people being prosecuted over 'evaded' fares worth pennies or at the very least only a few pounds. Heck we currently have a case running on this Forum where someone is being prosecuted over a fare 'evaded' of £0.00.

I'd like to say that's a vexatious prosecution. A few more cases like that brought by the same company and you'd be within your rights to petition for them to be listed as a vexatious litigant

 

[furlong]

Unlikely - the threshold is necessarily high.