Justice for sale: The growth in private prosecutions is creating a highly undesirable two-tier system

From so-called “date rape” cases to fraud cases – not to mention the flurry of controversial recent actions brought by the RSPCA – the use of private prosecutions in the British courts is growing, as we report today.

It is true that private prosecutions are nothing new. Oscar Wilde famously lost one against the Marquess of Queensberry in 1895. It is also important to recognise that most prosecutions are brought by the state, and that the reasons for bringing a private prosecution can be amply justified. The state bodies handling prosecutions don’t always get it right, as the parents of Stephen Lawrence discovered. They – unsuccessfully – tried a private prosecution after the state prosecutor said in 1994 that there was not enough evidence to prosecute Stephen’s killers – an embarrassing reminder of the state system’s failure to deliver.

While it is right that this extra recourse to justice should remain available when all other avenues are closed, the problem is that cases like that of the Lawrence family are far from representative. In reality, private prosecutions are mostly brought – and pretty much can only be brought – by companies and wealthy individuals, as they alone can bear the costs.

The attractions for them of going down this legal route are various. Criminal proceedings end with criminal punishments, if they succeed, which usually means prison sentences – and jail is a far more salutary penalty and potent deterrent to others than the mere award of money. Another advantage of private prosecutions is that they tend to be faster than civil proceedings. The twin attractions of speed and a prison term – if your opponent is found guilty – need no advertisement. What is disturbing is the growing importance of a “reverse incentive” to take out private prosecutions, which is the fact that state prosecuting bodies have fewer and fewer resources to conduct their work.

No one questions that the squeeze on funds in the judicial system is having an impact on the kind of prosecutions that are being brought. The Lord Chief Justice of England and Wales himself noted earlier this year that private prosecutions were growing “at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions”. Ought it not to concern everyone if a small minority of the better-off can use their financial muscle to bypass this “retrenchment”, leaving the rest of us stuck in justice’s slow lane?

Some safeguards are in place to prevent private prosecutions from growing to absurd proportions, or to the point where they clog up the work of the courts. The Attorney General and the Director of Public Prosecutions can halt such cases on the basis of the public interest. Judges have the right to throw out private prosecutions if they deem it necessary, and they do so. But these safeguards are not enough to allay concern. If a growing trend towards use of private prosecutions is indicative of a trend towards a privatised, two-tier justice system in general – which is what it seems – that should worry all of us, not just the Lord Chief Justice.