Lord Marks of Henley-on-Thames (LD)

My Lords, I will express support for Amendment 20 moved by the noble and learned Lord, Lord Keen; my noble friend Lady Brinton will address the other amendments in the group. Amendment 20, to remove Clause 12 from the Bill, may be technical but it is important because the regrettable fact is that, as is now well known, the relevant authorities and the police lack the resources to prosecute all crime reported to them. As a result, a significant proportion of reported crime goes insufficiently investigated and, too often, unprosecuted. That is true across a whole range of offences, from shop theft to some offences of violence and many cases of fraud. There is therefore a practical need for private prosecutions, and that practical need is complementary to the traditional—and we would say justified—view that it is not and should not be solely for the state to prosecute breaches of the criminal law. It is also open to private citizens and organisations to bring private prosecutions, and that is an important aspect of access to justice. It is certainly true that there are some cases where prosecutions require the consent of the DPP or the Attorney-General, but those tend to be special cases where Parliament has decided that that restriction is appropriate. An important feature of private prosecutions in this jurisdiction, and of their successfully being brought, is that the prosecution is entitled to recover the bulk of the prosecution costs from central funds by payment at a reasonable rate; the noble and learned Lord has stressed the importance of the reasonable rate. The noble and learned Lord is right to say that a significant proportion of such prosecutions are brought by charities, including Macmillan and Help for Heroes. Those charities are often the victims of fraudulent schemes. Other private prosecutions are, of course, brought by commercial organisations, notably retailers which suffer substantial losses as a result of theft from shops. They may be commercial organisations, and they may have a commercial motivation for the prosecutions, but as a matter of simple and instinctive justice and a matter of principle, it is not and should not be the sole responsibility of the state to initiate prosecutions. Nor should the state fail to assist financially those who bring meritorious prosecutions against those who transgress the criminal law. When I say assist financially, I mean bear the costs of successful prosecutions, in large part. The fact is that organisations may be deterred from bringing private prosecutions if their costs recovery is capped at a level that makes them unaffordable or uneconomic. Furthermore, if frauds against charities or offences against others, whether not for profit or commercial, cannot be prosecuted, the prevalence of those offences may be increased, to the general detriment of society as a whole. Yet, Clause 12, as the noble and learned Lord, Lord Keen, said, would introduce a mechanism for capping the amounts payable to prosecutors for their costs and cannot be read in any other way. My understanding is that the Government say they will consult on this proposal to cap prosecution costs recovery but want to see a reserved power in this Bill first. We think that is the wrong way round. The Government should carry out their consultation and then, in the light of the consultation, abandon, as we would hope, the idea of a cap on costs recovery or introduce any necessary legislation, following and taking into account the results of the consultation. It follows that Clause 12 is an utterly undesirable clause. It is not worth saving and cannot be saved, and we therefore support Amendment 20, which would remove it from this Bill.