When it comes to victims of crime, the pursuit of justice for the many, will be led by the state. But what happens when the state choses not to act?

When a criminal matter is bought to the attention of the Crown Prosecution Service (CPS), the Police (or any other relevant investigative body) in most instances will submit a file of evidence gathered as part of the investigation to the CPS for review. The CPS will appoint a ‘reviewing lawyer’ in order to decide whether or not a private prosecution can be bought against the alleged offender. The CPS will then make a decision as to whether to prosecute based on the application of a two stage test:

1. Is there sufficient evidence against the suspect to provide a realistic prospect of conviction? This will include an assessment as to whether or not the evidence gathered (such as witness testimony) is reliable, credible and whether or not there is anything that might undermine the case against the defendant.
2. Is it in the Public Interest to Prosecute? The CPS may consider matters such as the seriousness of the offence, the harm caused to the victim, the impact on communities and the age and maturity of the alleged suspect. Proposed prosecutions may also not meet this test because of matters such as funding and policy issues.

Inherently there is a degree of subjectivity to any decisions made, based on the assessment of the lawyer (or lawyers) tasked with reviewing the case – and so what happens if a victim or other interested party disagrees with the decision not to prosecute, having exhausted any appeal route they may have against that decision?

Should Private individuals find themselves in such a situation, they may be able to bring a Private Prosecution as a means of redress. This process normally involves the instruction of a solicitor in order to advise on and deal with the case – however the costs of the same, unlike with public prosecutions, must be funded in the first instance by the individual – a fact which to some, will prevent the proper pursuit of justice.

However – are the costs of private prosecution as daunting as they may seem?

What are the real costs?

Whilst in the first instance the costs of a private prosecution must be funded by the individual person or entity seeking to bring the prosecution, it does not necessarily mean that the person or entity will remain out of pocket for the expenses of bringing the case.

Whether the defendant is found guilty or not guilty (and assuming the prosecution is justified) , section17 Part II of the Prosecution of Offences Act 1985 provides for a costs application to be made to the court to recover funds expended on the prosecution. These costs are met from central funds, rather than the defendant.

s. 17 Provides that the court may -

(a) in any proceedings in respect of an indictable offence; and

(b) in any proceedings before a Divisional Court of the Queen's Bench Division or the [Supreme Court] in respect of a summary offence;

order the payment out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings.

It is apparent therefore that at the discretion of the court, there is clearly provision for the entire costs of the prosecution to be recovered on behalf of the party bringing the case – if those costs are ‘reasonably sufficient’ compensation. That is however subject to the proviso that the costs are ‘properly incurred’ by the prosecutor.

The Court however does have a discretion to award a lesser amount in accordance with s.17(2A), where the court finds circumstances making it inappropriate for the prosecution to recover the full amount mentioned in subsection (1).An order under this section must be for the payment out of central funds of such lesser amount as the court considers just and reasonable. In practice, it means that private prosecutors do not usually recover absolutely all of the costs they claim from central funds.

Additionally, s.18 of the same Act makes it possible in defined circumstances for the court to make an order for the costs to be paid by the accused to the prosecutor, or by another named person, as the court considers just and reasonable. However, many defendants will have access to Legal Aid, which makes a section 18 direction unlikely. The existence of confiscation proceedings in a case may also make section 18 irrelevant.

What to expect from the costs recovery process.

Upon an order being made by the court as regards to a claim from central funds The Costs in Criminal Cases (General) Regulations 1986 (SI 1986/1335), at Part III provides that the Appropriate Authority considering the claim shall consider any further information and particulars and shall allow such costs in respect of work and disbursements actually and reasonably incurred – the costs awarded will not exceed the costs actually incurred as part of the prosecution. The Appropriate Authority determining the claim must take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.

What will the Court Consider reasonable? - Fuseon Limited v Senior Courts Costs Office [2019] EWHC 126 (Admin)

The Court in the case of Fuseon Limited v Senior Courts Costs Office [2019] EWHC 126 (Admin) provided updated guidance on the recovery of private prosecutors costs.

The case involved the successful private prosecution of a director of Fusion Limited following the discovery of fraudulent activity undertaken by him during the course of his appointment. The matter had been reported to the Police, however it was understood that the police were unable to assist with the prosecution. As such, the remaining directors of the Company sought to prosecute the matter privately.

Following an 11-day jury trial before the Crown Court, the Defendant was convicted on 4 counts of the indictment and sentenced to a total of 3 years imprisonment. The costs incurred in the prosecution were significant. Upon submitting a claim for costs, the Determining Officer paid some but not all of the costs incurred by the prosecutor – an original determination allowed the prosecutor (turned claimant) the sum of £150,000 plus VAT. Following a redetermination, that sum was increased to a total of £200,000 plus VAT, though this still did not amount to the total sum incurred by way of the costs incurred, and it was submitted that the claimant was still some £180,000 out of pocket. Though the claimant tried to appeal against the determination to a costs judge, the appeal was rejected, leading the claimant to appeal the matter to the High Court.

The issues in that particular case were that the Costs Judge had upheld the decision of the original determining officer, and concluded that the solicitor who conducted the private prosecution had unreasonably charged London rates and travel expenses (as they were not local to the court centre where the prosecution was bought) thereby incurring more cost than a local solicitor would have incurred (who would not have charged such high rates nor would they have incurred such high travel costs) and that the claimants recoverable costs should be reduced by reference to the costs of the Crown Prosecution Service, had it in fact conducted the prosecution of the Defendant.

The Judge held that the question was whether or not the Claimant had acted reasonably in instructing this particular solicitor – and not whether or not he could have obtained cheaper representation more locally.

The Judge additionally held that comparing the costs of a CPS prosecution to that of a private prosecution was not an appropriate comparison to make. Such a comparison involved the use of hindsight by reference to the completed Crown Court proceedings and how the CPS would have handled the prosecution. Solicitors for the Claimant successfully argued the importance of ensuring that private prosecutors can "recover expenditure close to actual levels, otherwise they would be out of pocket, and that in turn would deter them from bringing such prosecutions’.

The Judge crucially focused his ruling on the financial effect upon the claimant and his company in bringing the private prosecution. The Judge noted that were he not to disturb the decisions made in the case as regards to the recovery of the claimants private prosecution costs, that damage would be done to the position of private prosecutions in the constitutional framework. Perhaps most notably, he made comment in his ruling that ‘private prosecutions would be in danger of becoming the preserve of those with deep pockets’.

Conclusion

Whilst the upfront costs of a private prosecution can sometimes seem daunting, the legislation and case law is clearly considerate of ensuring fair compensation for those in the position of needing to instigate private prosecutions. Whilst any such process will inherently require a costs benefit analysis and the consideration of how the matter will be funded in the first instance, it is clear that the courts recognise the vital importance of the private prosecution in our society and will, where appropriate, make fair restitution to the private prosecutor for the costs incurred in securing justice