Private prosecutions play a vital role in our justice system – the Post Office scandal should not undermine that

The Post Office scandal represents arguably the most widespread miscarriage of justice in British legal history. The victims deserve, and must receive, justice and we all need to ensure any necessary changes are implemented to ensure, as far as possible, something like this can never happen again.

To that end, the government is now said to be considering reforms to private prosecutions but this would be a serious error and is unlikely to be the result of any root cause analysis. It also bears observation that the Post Office matter is not new: Mr Justice Fraser’s judgment in Bates and oths. v Post Office Limited [2019] EWHC 3408 (QB) was handed down in December 2019, the inquiry was established in September 2020 and hearings commenced in early 2021. While the inquiry continues, only the TV programme is new.

The nuances

The Post Office is an entirely government-owned company with its roots in being part of government machinery (General Post Office). It has historically retained its own team of (in-house) prosecution lawyers, which is atypical for a commercial organisation. It used the government-approved IT contractor, Fujitsu. While the vast majority of its prosecutions were technically private prosecutions, they were viewed as, and treated as, quasi-public prosecutions and appear to have received a vastly reduced level of scrutiny. Importantly, some were public prosecutions – prosecutions conducted by the Crown Prosecution Service (England and Wales) (CPS) or the Crown Office and Procurator Fiscal Service (Scotland).

The right of victims of crimes to bring private prosecutions was not the cause of the scandal and, therefore, removing that important right would not be the answer. Simply put, we’re not ‘merely’ at risk of throwing the baby out with the bath water, but the wrong baby entirely.

Conversely, there is also a positive case to be made for private prosecutions, which allow victims to seek justice at a time when the police are often unwilling or unable to investigate complex crimes due to financial constraints; most forces have little if any capacity to investigate fraud, for example. If the cases do not exist, the CPS cannot prosecute them. Nowhere is this more evident than in the state’s failure to prosecute fraud, which accounts for more than 41 per cent of reported crime annually (and it is massively under-reported), but sees only 1 per cent of cases ever prosecuted.

But private prosecutions are not solely useful in cases of fraud. The constitutional right of a victim of crime to bring a prosecution has been recognised at the highest levels of the judiciary and is deeply enshrined in our law. In most private prosecutions, the prosecutor is the victim or complainant of the alleged offence. In 2023, for example, we helped secure justice in a case concerning a rugby coach accused of historical sexual abuse offences. Neither the police’s investigation nor a review under the Victims Right to Review procedure prompted any further action – that came only after we continued the (difficult) investigation and the victim commenced a private prosecution.

There seems to be a misconception that private prosecutions are abused by corporate entities to crush powerless individuals – one no doubt fuelled by the Post Office scandal, but this is simply not the case. My firm, Edmonds Marshall McMahon, works on behalf of several charities to successfully prosecute fraudsters who dishonestly claim to be raising money for the charity. These actions undermine public confidence in charitable giving and prevent help reaching the people the charities aim to support.

Conclusion

Recognising the issues that arose and the causes of the Post Office scandal is key to successful reform. The scandal initially arose not because the Post Office was able to bring prosecutions but because it failed to comply with its legal obligations as the prosecutor. If anything, the scandal has reiterated the importance of investigators and prosecution lawyers complying with their disclosure duties; duties that apply identically to prosecutors acting in both the private and public spheres.

It also demonstrated that objective scrutiny from independent lawyers is vital. The Post Office failed in its responsibility to comply with the continuing duties of disclosure, under the Criminal Procedure and Investigations Act 1996, which applies to all prosecutors. It was not a process failure or a difference of judgment – the Post Office knew there were fundamental problems with its critical evidence and it failed to disclose it. That is elementary stuff and there is no basis to consider that such obvious disclosure failures are, or are likely to be, any more prevalent in private prosecutions than public ones.

It is, therefore, vital that private prosecutors remain subject to the same legal and procedural rules as public prosecutors, it will merely undermine justice in this country further if we make it more difficult to seek justice through private prosecutions.

Andrew Marshall is a partner at Edmonds Marshall McMahon
emmlegal.com