In this final instalment, we will explore the criteria for initiating private prosecutions, the legal obligations involved, and the duty of full disclosure that binds all prosecutors, whether public or private.
Decision
Under English law, individuals and organisations, including entities like the Post Office, have the right to initiate private prosecutions, as outlined in the Prosecution of Offences Act 1985.
To start a private prosecution, the prosecutor must first identify the offence alleged, gather sufficient evidence and then submit a complaint to a Magistrates’ Court, which will issue a summons requiring the defendant to attend court to answer the charge.
The decision to prosecute must meet rigorous criteria; there must be sufficient evidence for a realistic prospect of conviction, and the prosecution must be in the public interest.
These standards, similar to those used by the Crown Prosecution Service (CPS), are fundamental to ensuring fairness. In the Horizon case, it appears both criteria were misjudged, leading to wrongful prosecutions.
Obligations
Once a private prosecution is initiated, the prosecuting body must adhere to legal obligations, especially fairness and objectivity. These obligations ensure that prosecutions are not driven by personal or commercial motives but are pursued in the interests of justice.
One of the most critical obligations is full disclosure — prosecutors must reveal any material that could undermine their case or help the defence. In the Horizon scandal, the failure to disclose problems with the Horizon IT system played a central role in the wrongful convictions of sub-postmasters.
Objectivity
Simon Clarke’s 2013 legal opinion, known as the “Clarke Advice,” was pivotal in exposing the Post Office’s lack of objectivity. Clarke, a barrister from Cartwright King, raised concerns about Gareth Jenkins, an expert witness, who failed to disclose key information about bugs in the Horizon system.
Despite Clarke’s warnings, the Post Office continued using Jenkins’ testimony, prioritising the protection of its IT system over fairness in its prosecutions. This breach of prosecutorial duties contributed to one of the largest miscarriages of justice in UK history.
Role
The misuse of prosecutorial power in the Horizon case raises broader concerns about the ethical boundaries of private prosecutions. While private prosecutions allow organisations to seek justice, they also carry a higher risk of conflicts of interest.
Prosecutors must always serve the interests of justice, not their own financial or reputational concerns. In the Post Office case, the duty to remain objective was overshadowed by the desire for convictions, causing irreparable harm to the wrongfully accused.
Conclusion
The Post Office scandal is a cautionary tale about the responsibilities that come with prosecutorial power. Whether public or private, prosecutors must remain vigilant in their duty to act in the interests of justice. Failing to uphold this duty risks undermining the very integrity of the legal system.
