CBA Response to Private Prosecuting Association Consultation entitled. Private Prosecutions Consultation. 6 th March 2019

Transcription

1 CBA Respnse t Private Prsecuting Assciatin Cnsultatin entitled Private Prsecutins Cnsultatin 6 th March 2019 Intrductin 1. The CBA represents the views and interests f practising members f the criminal Bar in England and Wales. 2. The CBA s rle is t prmte and maintain the highest prfessinal standards in the practice f law; t prvide prfessinal educatin and training and assist with cntinuing prfessinal develpment; t assist with cnsultatin undertaken in cnnectin with the criminal law r the legal prfessin; and t prmte and represent the prfessinal interests f its members. 3. The CBA is the largest specialist Bar assciatin, with ver 3,500 subscribing members; and represents all practitiners in the field f criminal law at the Bar. Mst practitiners are in self-emplyed, private practice, wrking frm sets f Chambers based in majr twns and cities thrughut the cuntry. The internatinal reputatin enjyed by ur Criminal Justice System wes a great deal t the prfessinalism, cmmitment and ethical standards f ur practitiners. The technical knwledge, skill and quality f advcacy all guarantee the delivery f justice in ur curts, ensuring that all persns receive a fair trial and that the adversarial system, which is at the heart f criminal justice in this jurisdictin, is maintained.

2 RE CHAPTER 1: CODE FOR PRIVATE PROSECUTORS Q1. Please make any cmments yu have n this chapter belw. Nne, ther than we welcme the Cde and believe that Private prsecutins shuld, where at all pssible, fllw the same standards and cdes as that f a public prsecutin. Nne, ther than we welcme the Cde and believe RE CHAPTER 2: CLIENT ENGAGEMENT Q2. Please make any cmments yu have n this chapter belw. Nne Nne RE CHAPTER 3: INVESTIGATION Q3. Re 3.2.1: the CPIA mandates that thse charged with the duty f investigating pursue all reasnable lines f inquiry, whether they pint twards r away frm the suspect. Nt all private prsecutrs will fall within this definitin. The Draft Cde envisages a revised test, nt embdied in legislatin, but which we cnsider t represent best practice. D yu agree with the test as stated? N If nt, what alternative wuld yu prpse?

3 Q4. Re 3.5.2: Sectin 34(4) f the CJPOA prvides that an adverse inference can be drawn where a suspect, when questined by a persn ther than a cnstable charged with the duty f investigating an ffence, fails t prvide answers which s/he later relies upn in her/his defence. The extent t which a private prsecutr cmes within sectin 34(4) may vary in different circumstances. D yu feel that paragraph f the Draft Cde, as drafted, adequately addresses this pint? N Q5. Re 3.9.2: It is unclear t what extent, particularly having regard t the Plice Act 1996, law enfrcement agencies are able t enter int agreements with private citizens r entities t prvide services relating t the investigatin r private prsecutin f criminal cnduct. The Draft Cde is nt intended t pine n this questin. Hwever, it recgnises the imprtance f transparency where any such arrangement is entered int. D yu cnsider the inclusin f this paragraph is apprpriate in the circumstances? N Q6. Please make any additinal cmments yu have n this chapter belw. Bth in relatin t this and the disclsure sectin it may be wrth adding a sectin abut cmpany structures and what "material held by the prsecutr" means. The Crwn/State is indivisible. In ur view, the same shuld be true f cmpanies and their subsidiaries and/r parent cmpanies. Given a glbal ecnmy this culd include cmpanies registered verseas and these t shuld be caught.

4 Bth in relatin t this and the disclsure sectin it m RE CHAPTER 4: DISCLOSURE Q7. Re 4.1.3: D yu agree that a disclsure management dcument shuld be prduced in mst private prsecutins? N Q8. Re 4.2.3: D yu agree that material which is subject t LPP must be listed n a disclsure schedule by a private prsecutr? N If s, which schedule: the sensitive r nn-sensitive schedule? Sensitive schedule Nn-sensitive schedule Q9. Please make any additinal cmments yu have n this chapter belw. 1) LPP material shuld be listed n the Unused schedule with sufficient detail fr the defendant t ascertain the general nature f the material with nn privileged detail. A fuller descriptin f the item, including reference t privileged material shuld als appear n the sensitive schedule. 2) Reference is made elsewhere in the cde t btaining previus cnvictins f the defendants and hw this shuld be dne (smetimes withut the prsecutr being given access). The same prcedure shuld take place fr all witnesses. 3) Specific reference ught t be made f the bligatin t disclse material that might assist an abuse argument (R v DPP ex parte Lee [1999] 2 All ER 737) and that this exists befre the CPIA regime kicks in.

5 1) LPP material shuld be listed n the Unused sched 2) Reference is made elsewhere in the cde t btain 3) Specific reference ught t be made f the bligat RE CHAPTER 5: CHARGING AND COMMENCING PROCEEDINGS Q10. Re 5.1.1: D yu agree that, at the end f the investigatin, a private prsecutr shuld cnsider whether there is any merit in referring the case t be brught by way f private prsecutin t a public prsecuting authrity at that stage? N Q11. Re 5.1.2: D yu agree with the way in which the Draft Cde envisages the Full Cde Test shuld be applied in the cntext f a private prsecutin? N If nt, please set ut hw yu cnsider it shuld be applied, giving reasns. Q12. Re and 5.5.6: D yu cnsider there t be any bligatin n a private prsecutr t infrm the Curt at the time f laying the infrmatin if either: a. The private prsecutr has nt referred the case t a state agency; r b. A state agency has declined t accept the case? If s, shuld this be mandated by the Draft Cde? N Q13. Please make any additinal cmments yu have n this chapter belw.

6 Reference shuld be made t Wkingham BC v Sctt [2019] which states that a lcal authrity when prsecuting shuld nt cnsider the making f a cnfiscatin rder as part f the cde fr prsecutrs test (the LA get 37.5% f the cnfiscatin amunt). It was held that t d s wuld be an abuse f prcess. Als the wrding f shuld be strnger: fr example Private prsecutrs are reminded f their rle as fficers f the curt and must be made aware... Reference shuld be made t Wkingham BC v Sctt The wrding f shuld be strnger: fr exampl RE CHAPTER 6: REFERRAL TO THE DIRECTOR OF PUBLIC PROSECUTIONS Q14. This chapter includes infrmatin abut referrals t the DPP by way f backgrund which des nt prescribe specific behaviur r cnduct. D yu cnsider this is helpful t understanding the Draft Cde, r is it unnecessary? Helpful t understanding the Draft Cde Unnecessary D yu think the level f detail is apprpriate N If nt, what level f detail d yu think is apprpriate? Are there any behaviurs r cnduct which shuld be prescribed here?

7 Q15. Please make any additinal cmments yu have n this chapter belw. 6.6 shuld refer t all state prsecuting bdies, nt just the plice. 6.6 shuld refer t all state prsecuting bdies, nt j RE CHAPTER 7: ABUSE OF PROCESS Q16. This chapter includes infrmatin abut abuse f prcess by way f backgrund which des nt prescribe specific behaviur r cnduct. D yu cnsider this is helpful t understanding the Draft Cde, r is it unnecessary? Helpful t understanding the Draft Cde Unnecessary D yu think the level f detail is apprpriate N If nt, what level f detail d yu think is apprpriate? The sectin deals specifically with delay and adverse media publicity, but nt many f the ther keys areas which private prsecutin may be particularly susceptible t such as failures t btain/destrying material. It des nt als deal with bth limbs f abuse; cannt receive a fair trial and unfair t try the defendant and cnsideratins that apply. Therefre greater detail shuld be included.

8 The sectin deals specifically with delay and adverse Are there any behaviurs r cnduct which shuld be prescribed here? Q17. Please make any additinal cmments yu have n this chapter belw. Specific reference shuld als be made (see abve) t the duty t disclse material that wuld assist in arguing abuse f prcess. Specific reference shuld als be made (see abve) t RE CHAPTER 8: INTERACTION BETWEEN CIVIL AND CRIMINAL PROCEEDINGS Q18. Re and 8.8.1: The Draft Cde refers t the imprpriety f bringing, r threatening t bring, private prsecutins slely as a strategic tl t add leverage t a party s psitin in civil prceedings. This is based n the judgments in R (Dacre) v City f Westminster Magistrates Curt [2009] 1 Cr App Rep and R (G) v S and S [2017] EWCA Crim Hwever, many practitiners, as well as thse acting fr defendants have cntinuing cncerns abut the extent t which private prsecutins are/can be used fr this purpse. D yu think the Draft Cde as drafted apprpriately/sufficiently addresses this issue? N

9 Q19. Re 8.8.1: The Draft Cde is silent as t the apprpriateness f discntinuing prceedings if the accused settles related civil prceedings and/r pays cmpensatin/makes reparatin t the victim. D yu think that the Draft Cde shuld address this pint? N If s, d yu think it is r is nt apprpriate t discntinue prceedings in such circumstances and what is relevant/nt relevant t this cnsideratin? It shuld lead t a full cde review. In ur view, where the evidential test cntinues t be met, the presumptin shuld be that the prsecutin will cntinue as therwise it undermines and It shuld lead t a full cde review. In ur view, whe Q20. Please make any additinal cmments yu have n this chapter belw. In ur view a sectin shuld be added t deal specifically where the prsecuting authrity themselves may be facing a criminal investigatin and/r regulatry prceedings. There may be circumstances where it is apprpriate fr a cmpany t prsecute individuals fr their criminal behaviur, but care shuld be taken that this is nt used as a way t scapegat r shift fcus away frm themselves (this ties in with the sectin n mtive). In ur view a sectin shuld be added t deal specifi RE CHAPTER 9: TRIAL Q21. Re and 9.3.2: D yu feel this is the apprpriate prcedure t be adpted in these circumstances?

10 N RE CHAPTER 10: SENTENCING, CONFISCATION AND ANCILLARY ORDERS Q23. This chapter includes general infrmatin abut sentencing, cnfiscatin and ancillary rders which is nt specific t private prsecutins and/r des nt prescribe specific behaviur r cnduct. D yu cnsider this is helpful t understanding the Draft Cde, r is it unnecessary? Helpful t understanding the Draft Cde, Unnecessary D yu think the level f detail is apprpriate N If nt, what level f detail d yu think is apprpriate? There is an inherent tensin where the curt believes it is apprpriate t prceed t cnfiscatin but where the prsecutr des nt benefit frm the prcess (unless cmpensatin is awarded and then nly t the level f cmpensatin when verall benefit culd be larger). Tensins may als arise in circumstances where civil prceedings are nging r anticipated. There may therefre be an incentive t drp cnfiscatin prceedings r settle fr a lesser amunt. The cde shuld address this and the expectatins n the private prsecutr in these circumstances. This can als have cst implicatins fr the private prsecutr. There is an inherent tensin where the curt believe Are there any behaviurs r cnduct which shuld be prescribed here?

11 Q24. Please make any additinal cmments yu have n this chapter belw. RE CHAPTER 11: COSTS Q25. Please make any cmments yu have n this chapter belw. Nne ther than reference shuld be made t the cst f cnfiscatin prceedings (frm which they might nt benefit). Nne ther than reference shuld be made t the c RE CHAPTER 12: COMMUNICATIONS WITH PRESS AND MEDIA Q26. Please make any cmments yu have n this chapter belw. Nne