2024i16, Tuesday: No, minister.

2024i16, Tuesday: No, minister.
Photo by Tim Hüfner on Unsplash

There's been - justifiably - a lot said about the degree to which the Horizon scandal was made worse by the Post Office's ability to be a private prosecutor.

It's certainly a factor. Anyone taking a basic criminal law class finds out from the first that a fundamental difference between civil and criminal law is that it's not about arguments between people, but for things that are serious enough that the State has to step in. Because punishing wrongs - possibly with prison or in past times something even worse - as opposed to compensating for them is not something people ought to be able to mete out to one another.

I can't help thinking of the oft-quoted and still more often-misunderstood line in the Bible from Romans, chapter 12. "It is written: Vengeance is mine; I will repay, saith the Lord," writes St Paul at verse 19. And people read that as though God somehow still blesses the eye-for-an-eye school of Old Testament thought. And overlook the first half of the verse, which warns people not to try this at home for themselves. It's God's job. Not theirs.

So similarly: we don't, as a rule, get to use the law to punish people on our own behalf. That's the State's job.

Except, of course, in England and Wales you can bring a prosecution yourself. Pay for it yourself. Stick someone in the dock. Make a case. And if they're found guilty, they get sentenced just as though the Crown had put them there.



The above sometimes comes as a shock to people. It sounds mad. You mean I can just accuse anyone of a crime, then hire some lawyers, and get them locked up? Could I do that?

And then after a pause, as you consider that list of people you really can't stand: Can I do that?

Well. Yes, you could. And you can. If you've got the money. And no-one expects you to be doing it purely out of the kindness of your heart: if you've got a beef with the person you're accusing (most frequently because you say they've ripped you off), that's not a stopper in itself.

But - and this is the important bit - if you're going to do it, you have to act as though you're the State doing it. By which I mean you have to remember that in England and Wales prosecutors aren't meant to behave like DAs on American cop'n'court shows. The prosecutor's job isn't to get someone put away, or to land a conviction at all costs.

No. A prosecutor is - in the jargon - a "minister of justice". Whoever's paying the bill, the prosecutor's primary loyalty has to be to the Court and to the interests of justice. They can't (or shouldn't) be hired to get a result - or at least not to seek to guarantee one. Only to get it right.

Their job should usually start by assessing whether a particular case should be prosecuted at all. In the public sector, this is done by what's called the Full Code Test:

  1. First, you ask if the evidence means there's a reasonable prospect of conviction. Normally you're working out - inevitably on a slightly rough-and-ready basis - if the odds of a conviction are better than even. Note that this isn't about predicting the outcome. It's about thinking: what chance is there, on this evidence, that a magistrates' court or a crown court jury will be sure the defendant did it? If so, on to stage two. If not, you should drop it right there.
  2. Second, you ask yourself: is it in the public interest to prosecute? This can be a bit tricky. Some crimes - the really serious ones, murder, rape and so on - are almost always going to tick this box. But the reality is, not everything can go to court; court time and resources aren't infinite. And sometimes even if you can prove someone did it, does the good of the country really demand a prosecution? Say an 80-year-old grandparent forgets to renew their car tax. That's a strict liability offence. Easy to prove. But say they haven't driven in months, and in fact are practically housebound looking after their spouse with Alzheimer's? Is it really in the public interest to give that person a criminal record? I'd say not.

(This is a heavily simplified version. There are wriggles to it. But it'll do for these purposes.)

Private prosecutors aren't bound by the Full Code Test, but the good ones - the responsible ones - will at least pay heed to it. One good initial test of a bad private prosecution is one where no-one seems really to have thought of this at all.

But let's say you still get past this. You still have to do the job of prosecuting right. Which means forgetting that you've probably got a private motive and remembering that your job is to put the case firmly but fairly, and not - not - to just go for the win at all costs. In particular, you have to remember things like disclosure: if you know of something that could reasonably weaken your case or assist the case being put forward by the defendant, you have to tell them.

If it's crossed your mind that this is going to put people whose livelihood depends on whoever decided the prosecution needed to be initiated in the first place, then I can't say I disagree. People will say I'm talking my own book here, but I'd incline to the view that people who pay for prosecutions shouldn't - you know - be actually allowed to prosecute them. That has to be done by someone independent. Someone who can tell hard truths about disclosure, and strategy, and the public interest. Someone who, in short, can do it right without having to worry about still being in work tomorrow - and without, consciously or unconsciously, buying into the motive rather than the method and letting the former cloud the latter.

In other words: someone who looks nothing like all the people inside the Post Office who were carrying out the prosecutions of sub-postmasters.

(For excellent if depressing examples, see the recent testimony of Stephen Bradshaw, Rob Wilson and Jarnail Singh to the Horizon Inquiry.)

I'm sure there are those who say - and I can understand this, particularly now - that private prosecutions just shouldn't happen. The risks are too high. The perverse incentives incurable. No private person should have - in effect - the power of the State to try to have someone locked up.

I might have agreed, once. And in principle it feels sound, doesn't it?

In practice, though: no. And this is where I com back to fraud, my evergreen hobby-horse. Stop me if you've heard this from someone before, but you may have noticed that fraud is practically decriminalised in this country. Half the recorded crime in the country is investigated and prosecuted by a tiny number of people, compared with the overall resources of the police and criminal justice system. Which is anyway in a state of near-collapse after a decade and a half of - frankly - vandalism that at best is negligent beyond belief and at worst may sometimes be wilful.

Private prosecutions - so long as they're run by independent people who can always walk away if asked to do something they don't approve of - are one way around that. Yes, generally they're only available to people with money who've lost money. And they don't at present help all the people without it who've lost everything.

But that doesn't mean it couldn't happen. I wonder if there's a philanthropist out there interested in staffing up a charitable anti-fraud programme: one which would do at least a bit of the work that Action Fraud, the NFIB, overstretched and under-skilled police forces up and down the country and the CPS can only scratch the surface of?

I can think of loads of investigators, accountants and lawyers who'd be interested in helping. Perhaps not on a pro bono basis. We do have to eat. But there's always a deal to be struck.

And I've done private prosecutions myself. Water companies do them, for instance - say against businesses who pollute the water supply by pouring waste into it. I've done a few; if asked to do one that didn't stack up against the Full Code Test or a near-analogue, I'd walk away - with advice in writing that it should be discontinued.

It's never that simple, of course. Private prosecutions are abused by others than the Post Office. This thread is a prime example:

I can think of possible fixes for this kind of abuse (a statutory requirement to inform the CPS? Although that would mean the CPS spending more money it doesn't have on reviewing them), although I'm confident people with more criminal experience than me, like CrimeGirl, can do a lot better than I can. Others are suggested here.

Taking it all together, it feels as though the baby is worth keeping even if the bathwater badly needs to be ejected. More thinking required...