Lord Thomas of Cwmgiedd (CB)

My Lords, the issue of costs in private prosecutions is an extraordinarily serious one. The noble Lord, Lord Sandhurst, has spoken of the position of charities, the RSPCA being one example. One can well understand the position of a charity conducting a prosecution through a small solicitor where costs are modest. On the other hand, one must recall that for good reasons of public interest, there are private prosecutions by large corporations to protect intellectual property. The consequence of the change in the market for solicitors and barristers has produced a problem, because what the CPS pays prosecutors to prosecute is completely out of line with what a large, industrial conglomerate that wants to enforce its intellectual property rights can pay. This is a problem that has to be grappled with. One of the reasons why the CPS cannot prosecute more than it does is the Government’s constraint; both the last Government and this one are responsible for that. There is not enough money in the system to enable the CPS to prosecute where it should be doing so. More than 10 years ago, the change in the market and the constraint on the finances of the CPS, arising out of the 2008 financial crisis, began to manifest themselves in the contrast between what happened in private prosecutions by large conglomerates, or associations of those interested to protect their economic position, and in the CPS. The courts have tried to do something about it through a number of cases, but it is an extraordinarily difficult area. For example, in a commercial case—many of these cases go to solicitors—there did not used to be the idea that you would have to get a tender before you prosecuted, but the courts now require it. The courts have made a number of very important changes to try to bring this cost under control, because, although it cannot be shown that if you pay a large sum—several hundred thousand pounds—to defer the costs of a private prosecution it will directly come out of any bit of the overall justice budget, anyone who has had to deal with the Treasury knows that that is the case. The Treasury looks at a pot for justice and, if you take large sums out of it by paying for private prosecutions, the other part of the justice system suffers. This is a matter that has to be grappled with, and the right people to grapple with it are the Government. It is not a very good position for judges to be in to be making these very difficult decisions because of the gross inequality between what you pay private lawyers, which many may think is far too much but that is not for me to judge, and what you pay the Crown Prosecution Service, which may not be enough—again, that is not for me to judge. The problem of what I might call public penury and private affluence is absolutely illustrated by the problem of paying for private prosecutions. It is for the Government to grapple with, and setting rates is one of the ways to do it. I think it is probably the right way, but all I am saying is we that cannot run away from this problem that has arisen because of changes in the market and the constraints on public expenditure.