The recently reported case of the failed private prosecution by Ashok Patel of Crane Legal against two of his former employees, Randeep and Sandeep Janu, who worked for Mr Patel’s firm Balsara & Co, highlights that private prosecutors can recover costs for bringing cases that fail.
The law permitting this is found under section 17 Prosecution of Offences Act 1985 and part III of the Costs in Criminal Cases (General) Regulations 1986.
However, whilst the private prosecutor is entitled to have their reasonable costs reimbursed by the taxpayer, the victorious defendant can only claim their costs back at far lower Legal Aid rates.
The application to bring a crowdfunded private prosecution by Marcus J Ball against Boris Johnson for allegedly breaching public trust is a prime example of why the right of the individual to bring criminal prosecutions has been protected in law.
Provided a case is properly brought, in other words the case meets the test laid down in the full Code for Crown Prosecutors in that the case has sufficient evidence to secure a realistic prospect of conviction and prosecution is in the public interest, then costs can be claimed. It is not a given right – the Criminal Procedure Rules state the court may decline to make a prosecutor’s costs order if, for example, the prosecution was started or continued unreasonably. In the Crane Legal versus Janu case, the Judge obviously considered that the case was properly brought in order to grant such an application. On the other hand, crowdfunding is considered a gift and so costs cannot be claimed.
Costs are only recoverable out of central funds against fees generated in the proceedings. Here there is another dilemma – the Criminal Procedure Rules now dictate that in order to issue a summons an oral application should be made to the Court setting out the grounds for the application. The National Taxing Team has stated that costs incurred prior to the issuing of a summons are not recoverable out of central funds. Therefore the Criminal Procedure Rules and the National Taxing Team are at odds with one another. The small group of specialist firms capable of acting for private prosecutors argue that the amount of work that goes into considering the evidence in order to draft the summons and making the application can be enormous, and such work ought to be claimable as it is preparatory to the proceedings rather than investigative.
That brings us to another dilemma facing private prosecutors. How can they be recompensed for fees incurred investigating cases? The cost of engaging private investigators can be enormously expensive; they are duty bound to investigate all lines of enquiry that lead both to and away from the suspect. They have to collate, secure and schedule evidence. The only way to recover investigation costs is to apply to the Court for an order to be made against the defendant. However such an order is highly unlikely to be made unless conviction is secured and the defendant has sufficient means to pay.
Perhaps an innovative funding model, that takes into account that criminal lawyers are not allowed to work on a no-win-no-fee basis, and that is prepared to assist with funding criminal investigations in certain circumstances, could ensure private prosecutions are no longer the preserve of the wealthy.