Plans to overhaul the growing “cottage industry” of private prosecutions are already being urgently examined by ministers in the wake of the Post Office scandal, including measures that could see untrustworthy bodies barred from pursuing them.
Labour is also understood to be drawing up its own reform package this weekend after the outcry prompted by the Post Office’s use of private prosecutions against more than 700 post office subpostmasters. It means that there is growing scope for a cross-party commitment to complete any reforms after the election.
A new inspection regime for private prosecutors, a binding code of standards and the creation of a new power to strip an organisation of its power to conduct them are all being discussed in Whitehall.
It follows one of the biggest miscarriages of justice in British history, as subpostmasters were imprisoned, vilified and left bankrupt by incorrect prosecutions based on the Post Office’s unreliable Horizon accounting system.
Senior Tories said on Saturday night it was now “absolutely clear” the reforms were needed. The government has already taken the unprecedented step of announcing a plan for the mass exoneration of subpostmasters in England and Wales caught up in the scandal, which captured the public’s attention after the ITV dramatisation Mr Bates vs the Post Office.
Ministers committed to look at reforms after the extraordinary saga, and a significant overhaul of private prosecutions is now being contemplated. It is understood that Alex Chalk, the justice secretary, has long held reservations about their use.
It has yet to be decided whether immediate changes will be possible or whether the Law Commission will be given the task of holding an official review, likely to report after the election.
Ministers are particularly concerned that because the Post Office saw itself as both the victim of a crime and the prosecutor, it lacked the same incentive to disclose all relevant material to those it was pursuing.
The reforms now being considered were drawn up by the justice select committee in 2020, but rejected. Bob Neill, its Tory chair, said it was now clear they should be adopted.
“These reforms are all the more important now because it seems absolutely clear from all that we’ve learned about the Post Office saga that there was a gross failure, in both independence and objectivity, in the handling of these prosecutions,” he said.
He added: “That’s particularly clear in the systemic and absolutely lamentable failure to disclose relevant material. To make sure that is not repeated, we think it’s critical now that the government does implement these recommendations to ensure the same standards are applied as you’d expect from a public prosecutor. “That should be backed up by a power to permit the removal of the right to prosecute from organisations who are found not to come up to that standard. That seems to be the only way that we can now guarantee any public confidence in private prosecutions.”There have also been demands to reform laws that presume a computer system is reliable unless proved otherwise – another element that contributed to the prosecution of subpostmasters.
However, Whitehall officials believe that the reliability of the Fujitsu-developed Horizon system at the heart of the Post Office scandal could be challenged in court without the need to change the law.
It comes amid growing concerns about the proliferation of private prosecutions in the past 15 years, with some law firms now specialising in pursuing them. Any individual, private company or charity can pursue a private prosecution under the 1985 Prosecution of Offences Act, by first securing permission from a magistrates court. Among large bodies to pursue them are the Civil Aviation Authority, the Food Standards Agency and the RSPCA. While many private prosecutions are seen as positive, there is growing pressure to address a lack of regulation.
Senior lawyers are also calling for action. Writing for the Observer, Sam Townend KC, chair of the Bar Council, said it was “inevitable that those bringing private prosecutions have some sort of a vested interest in the cases brought”. He said that the justice select committee’s reforms “should now be revisited”.
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“At the very least, parliament should carefully consider introducing enhanced oversight, and possibly formal regulation, to help to ensure the power to prosecute is not abused,” he writes.
Jonathan Rogers, associate professor in criminal justice at Cambridge University, also supported an inspection regime for private prosecutions, adding that they should not simply be abolished, as many served a positive purpose.
“We are very sure that private prosecutions have gone sharply up over the past 15 years,” he said. “Exact data over that period is not kept anywhere. But anecdotally, we can see that they’ve massively gone up.
“You now have law firms which offer specialisms in conducting private prosecutions, which was unheard of 15 years ago.
“It is a cottage industry. But whether it’s a bad thing, of course, really depends on how good their work is. When they do a good job, they are often filling a gap which has been left behind for several years by the police and CPS [Crown Prosecution Service].”
A Post Office spokesperson said: “Post Office has had no special authority to bring private prosecutions. The right to bring a private criminal prosecution is available to both companies and individuals in England and Wales as a result of section 6 (1) of the Prosecution of Offences Act 1985.
“Post Office has not undertaken any private prosecutions related to Horizon since 2015 and has no intention of doing so. In cases of suspected criminal activity, evidence is referred to the relevant law enforcement agency.”
