Although the Crown Prosecution Service (CPS) usually undertakes prosecutions of criminal activity, individuals and civil society organisations, like Campaign Against Antisemitism, can launch private prosecutions if the CPS fails to act, and we have done so in the past. However, the CPS can then take over such private prosecutions, with a view either to continuing them or to discontinuing them.
Our submission to the inquiry focused on the role of the CPS in taking over private prosecutions.
The concerns we raised were twofold: “firstly, the CPS is able to refuse to prosecute and then to prevent a private prosecutor from prosecuting; and secondly, a challenge to such intervention by the CPS is judged against an almost impossibly high bar.”
With regard to the first point, we noted that “A decision by the CPS not to prosecute can be a decision to deny justice. Private prosecution exists as a check on that power, to enable individuals and organisations, like CAA, to pursue justice when the state does not.”
Accordingly, we recommended that “The CPS should not be permitted to regulate itself in this manner. Whilst it should be at liberty to take over private prosecutions in order to continue them, any decision to discontinue a private prosecution should be made by an independent party. We submit that the independent party should be a senior barrister acting as a reviewer of private prosecutions.”
Concerning challenges to decisions by the CPS, whether not to prosecute or to discontinue a private prosecution, we observed that “A decision by the CPS not to prosecute or to discontinue a private prosecution is subject to judicial review, however the courts have interpreted their discretion very narrowly. Campaign Against Antisemitism has sought judicial reviews and both succeeded and failed, however there are many occasions when we have not sought judicial review because we know the bar to be set almost impossibly high.”
We therefore recommended that “judicial review of a decision [by the CPS] not to prosecute or to discontinue a private prosecution should be judged on the balance of probabilities and not on the existing threshold. This would force the CPS to consider decisions to prosecute or to discontinue private prosecutions more carefully, and would ensure that more crimes are heard by the criminal courts and not written off by the CPS with almost no accountability.”
The full submission can be downloaded here.