Government to change costs rules for private prosecutions

The government is to change the costs rules around private prosecutions, saying that the current arrangements “are inequitable as between prosecutors and defendants, and do not always represent a cost-effective use of public money”.

The Ministry of Justice said today that it agreed with a report by Parliament’s justice select committee that the costs recoverable from central funds by a private prosecutor should be limited in the same way that costs recoverable by an acquitted defendant already are, by being capped at legal aid rates.

“This will require an amendment of the existing legislation. We are also minded to agree that costs recoverable by a private prosecutor from a convicted defendant should be limited, either by being capped at legal aid rates or by reference to what the CPS would have sought, but we wish to consult further on this.

“We also intend to reflect further, and if appropriate consult, on whether there should be a wider discretion to reduce or withhold payment of costs from central funds in the event of an acquittal.”

The ministry outlined this approach in its formal response to the committee’s report from last July, which found that many private prosecutions cost the taxpayer more than those conducted by the Crown Prosecution Service (CPS).

The committee said: “That may in part be explained by the complexity of the cases undertaken privately. Nevertheless, the public is unlikely to accept that the state can afford to pay for the prosecution of financial crimes against large organisations but is not prepared to ensure that the police and the CPS have enough resources to prosecute similar offences committed against ordinary citizens.”

The number of private prosecutions and level of costs paid out of legal aid central funds grew significantly in 2019-20, to 276 and £12m respectively. Currently, a private prosecutor can recover all their costs from public funds even if the defendant is acquitted.

The committee heard evidence that a favourable costs regime was driving organisations to use private prosecutions instead of the civil courts.

Lord Thomas, the then-Lord Chief Justice, highlighted in the 2014 case of Zinga that, in practice, private prosecutions were likely to cost the state more than an equivalent CPS prosecution.

The committee agreed with the Criminal Law Reform Now Network that the ability of private prosecutors to seek considerably more by way of costs from convicted defendants created a risk that the higher costs could “be as coercive towards defendants who anticipate being convicted (whether guilty or not) as the threat of higher sentences if a trial is contested”.

The committee agreed with the CPS that the government should urgently review funding arrangements for private prosecutions, saying recoverable costs should be capped at legal aid rates, there should be no disparity between the claims that can be made from central funds by prosecutors and defendants, and defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS.

Sir Bob Neill MP (pictured), chair of the justice select committee, welcomed the government’s commitment to reform, saying: “This is a welcome levelling of the playing field.”

Picture credit: Official Parliament portrait (used under an Attribution 3.0 Unported (CC BY 3.0) licence, cropped)

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Costs News
Published date
04 Mar 2021

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