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Should those who allege harm prosecute crimes against them?

Penelope Gibbs
27 Jan 2023

The Post Office scandal is now seen as a notorious miscarriage of justice. But one aspect of it has been little discussed. That the prosecutor of the alleged crimes was also the victim. The Post Office had an in-house investigation team and used their own people to prosecute those accused of committing crime against the organisation. In this case there was a clear conflict of interest since the real problem – a glitchy IT system – was never investigated because it was easier to blame post masters and post office staff for shortfalls of money.

The Justice Select Committee looked into private prosecutions and decided that the Post Office (and the RSPCA) were special cases and shouldn’t influence policy in general. Maybe. But the Post Office and RSPCA were different from most private prosecutions in one respect. Both organisations had a standing dispensation to charge and prosecute their own cases. Whereas most private prosecutions are launched by a private company or individual who needs to get a judge’s go ahead first.

Transform Justice is particularly concerned by these “semi-private” prosecutions by organisations which have the right to prosecute people but who are not the Crown Prosecution Service (CPS). The majority of criminal prosecutions in this country are by non CPS government approved prosecutors – the police, TV licensing, rail companies, local authorities etc. Their prosecutions go through the single justice procedure, a process which has been proven to ignore the vulnerabilities and equality issues of defendants and in which most defendants do not effectively participate. Leigh Day has recently won a landmark case on behalf of a woman who was prosecuted for not having a valid TV licence. Most of those who are prosecuted for this offence are women because they are at home when the enforcers call.

This case involved Josiane, a single parent who struggled during the pandemic to pay her bills. She was prosecuted for not paying her TV licence but the charity Appeal got involved and the charges were dropped. After being sued by Josiane (with help from Appeal and Leigh Day) for sex discrimination, the BBC paid out £6,500 in compensation. The BBC is currently conducting a gender disparity review to assess whether their prosecutions for non payment of TV licence are biased. But they wouldn’t be doing the review without pressure from Appeal.

When the organisation that is the alleged victim is allowed to prosecute the offence against them, is their judgment clouded? What motivation does the organisation have to critique the way they prosecute? It suits the prosecutors concerned that most people do not plead guilty or not guilty under the single justice procedure, given those who don’t plead are assumed to be guilty, convicted and the prosecutor gets costs. There is no inspectorate for non CPS prosecutions asking awkward questions. And hardly any defence lawyers challenging either, since no legal aid is available for these cases.

There is another kind of case where the victim is prosecutor and its even more worrying because the stakes are higher. The police can charge cases themselves where the offence is not the most serious (summary or either-way) and where they predict the defendant will plead guilty. In the case of assaults on police, defendants often do opt to plead guilty because they know they lashed out and there is bodycam footage to prove it. But these defendants may well have admitted the offence without legal advice and not understand they might have a viable legal defence.

The assault of a police officer carries a maximum prison sentence of two years. Should such an offence be charged by police when the victim is a police officer? Can the police really judge the public interest if one of their own was harmed and they have publicly supported harsher sentencing? We wrote to the CPS to set out our concerns about the police charging crimes of which they were the victim. In their response the CPS tried to reassure us: “the Police are required to use this [charging] power responsibly and as you know Forces are working hard to recognise and act appropriately in respect of persons with mental health issues”. They may be, but police guidance still suggests police should “do their best to support a successful prosecution” and omits any mention of diversion.  We are still convinced that a victim (be that an organisation or an individual) should not be able to prosecute a crime against them. And if they are allowed to charge, any conflict of interest should be clear and subject to scrutiny.