Frequently Asked Questions
What is a private prosecution?
Most investigations and prosecutions are carried out by public authorities. A private prosecution is “a prosecution started by a private individual (or entity) who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions”.
Who can bring a private prosecution?
Section 6(1) of the Prosecution of Offences Act 1985 preserves the right to bring private prosecutions in the following terms:
“…nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.”
‘Any person’ means any private individual or entity.
Does a private prosecution have to satisfy the Code for Crown Prosecutors?
Under the Code for Crown Prosecutors, the Crown Prosecution Service can only bring a prosecution if a case passes both the evidential test and the public interest test. A private prosecution does not have to satisfy either of these tests.
However, a private prosecutor is still a prosecutor, and is therefore subject to the same obligation to act as a minister of justice as are the public prosecuting authorities. Advocates and solicitors who have conduct of private prosecutions must therefore observe the highest standards of integrity, of regard for the public interest and duty to act as a minister for justice in preference to the interests of the client who has instructed them to bring the prosecution.
Are there any restrictions on the right to bring a private prosecution?
Yes. First, all magistrates have a judicial discretion to refuse to issue a summons. Second, the Director of Public Prosecutions (DPP) can take over a private prosecution at any stage and may choose to either continue or discontinue the prosecution. Third, the ability to prosecute certain offences is restricted either expressly by legislation and/or as a matter of policy.
How is a private prosecution started?
A private prosecution begins when a magistrate issues a summons or warrant following the laying of an information by the private prosecutor. An information is a document that provides a magistrate with a summary of the case in writing – it sets out the offences alleged, identifies legislation relating to those offences, and sets out the prosecution’s case.
The general principle is that the magistrate will issue a summons or warrant if an information has been properly laid, unless there are compelling reasons not to do so. In exercising the judicial discretion as to whether to issue a summons, a magistrate should at the very least ascertain: (i) whether the allegation is of an offence known to the law and, if so, whether the essential ingredients of the offence are prima facie present; (ii) that the offence alleged is not “out of time”; (iii) that the court has jurisdiction; and (iv) whether the informant has the necessary authority to prosecute; and it may also be necessary to consider whether the allegation is vexatious.
Is it necessary for a private prosecutor to have approached the police first?
There is no requirement for a private prosecutor to have approached the police first. However, when a Magistrates’ Court is considering whether to issue a summons, whether or not the person seeking the summons has approached the police may be relevant. The failure of the police to proceed in a particular case may demonstrate that it is hopeless.
Is a private prosecutor required to tell the CPS that it has commenced a private prosecution?
There is no obligation on the part of the private prosecutor to notify the CPS that it is undertaking a private prosecution.
Is a private prosecutor entitled to see material that is in the hands of the police or CPS?
The bringing of a private prosecution does not confer a right of access to statements, photographs or reports in the hands of the police or the CPS, even if the request is a legitimate one and even if the documents requested are essential to the success of the prosecution.
What assistance can the CPS to give to a private prosecutor?
The CPS Guidance on private prosecutions states that the general rule is that the CPS should make disclosure whenever it is in the interests of justice to do so. It goes on to say that it is unlikely to be in the interests of justice for the CPS to disclose case material to a potential private prosecutor if that material has been reviewed and is not in itself considered to be sufficient to pass the evidential stage of the Full Code Test.
The CPS considers that any voluntary disclosure should be even-handed between the parties and therefore any documents supplied to the private prosecutor at his or her request should also be supplied to the defendant and vice versa.
The CPS will apply its legal guidance on Disclosure of Material to Third Parties when considering voluntary disclosure of the documents and information it holds.
Once a private prosecution has commenced, the private prosecutor can apply for a witness summons to secure the production of relevant material.
Can the CPS take over the prosecution?
The Director of Public Prosecutions (the DPP) retains the right under s.6(2) of the Prosecution of Offences Act 1985 to take over a prosecution.
If the CPS receives a request to intervene in a private prosecution, for example from the defence, then it will consider whether the Full Code Test is met. In the event that it is not met, the CPS should take over the prosecution and discontinue it. In the event that the Full Code Test is met, the CPS will consider whether there is any other reason why the private prosecution should be taken over and discontinued, for example:
it interferes with the investigation of another criminal offence;
it interferes with the prosecution of another criminal charge;
it is vexatious or malicious;
the offence has already been disposed of.
If there is no other reason to discontinue it, then the DPP will consider whether the prosecution should continue as a private prosecution, or whether the DPP should take it over. This decision will be dependent on a number of factors, including: how serious the offence is, the complexity of any disclosure, and any issues of witness anonymity.
There are also some circumstances in which the DPP will take over a prosecution as a matter of public policy.
If there is misconduct by the private prosecutor, will the CPS intervene?
In general, the CPS will not take over a private prosecution because of misconduct or alleged misconduct by the private prosecutor. Its Guidance states that “it is not the role of the CPS to discipline private prosecutors but rather it is for the courts to control private prosecutors.”
Can a private prosecutor apply for confiscation and compensation?
Confiscation orders may be made on the application of the private prosecutor, or of the court’s own motion. The case of R. v Zinga confirmed that a private prosecutor is entitled to initiate confiscation proceedings under s.6 of the Proceeds of Crime Act 2002.
Compensation orders will be made where the court is satisfied that the defendant has the ability to pay.
Can a private prosecutor recover costs?
Legal costs can often be recovered by a private prosecutor from either central funds (whether or not the defendant is convicted) or, in some circumstances, from the defendant.
Where a successful private prosecutor has incurred investigative expenses prior to the commencement of proceedings, they may also recover these from the defendant.
Can a private prosecution be brought in parallel with civil proceedings?
It is not necessary for an individual or entity to choose between bringing a private prosecution and civil proceedings; private prosecutions are often brought in parallel with civil proceedings. However, a private prosecution should never be deployed as leverage or a bargaining tool in order to reach a settlement in the civil proceedings.
Does a private prosecutor retain complete control over the prosecution?
There is no place in a private prosecution for what could be described as “end to end” case management on behalf of the client who has initiated a private prosecution. Advocates and solicitors who have conduct of private prosecutions owe a duty to the public and to the Court to ensure that the proceedings are fair and in the overall public interest. That duty transcends the duty owed to the person or body that has instituted the proceedings and which prosecutes the case.
Why might an individual or entity choose to bring a private prosecution?
There are several potential reasons, including:
Where there has been a failure by the authorities to investigate and/or prosecute;
Where there is a need for specialist expertise, which the state may be unable to provide;
Where the individual or entity is precluded from bringing a civil claim.
What are the associated risks of bringing a private prosecution?
There are a number of potential risks, which include:
The financial burden associated with bringing a private prosecution;
The risk that the case may be taken over by the CPS;
The risk of the prosecutor being sued for malicious prosecution;
If the prosecution fails, the private prosecutor may be ordered to pay the defendant’s court costs.
Can a private prosecution be initiated where the Crown Prosecution Service has chosen not to prosecute?
A decision by the CPS not to prosecute does not conclusively determine that a prosecution is not in the public interest. Private prosecutors are therefore generally free to start a private prosecution after a decision by the police or CPS not to prosecute or to stop a prosecution. Indeed, private prosecutions are themselves seen as a valuable safeguard against inertia or misbehaviour by the official prosecuting authorities. The CPS will not, therefore, take over a private prosecution simply because it was started after the police had decided not to prosecute, or the CPS had stopped its prosecution; the Supreme Court has confirmed that private prosecutions remain possible in appropriate cases even where the CPS has decided against instituting a prosecution.
That said, if the CPS receives a request to intervene in a private prosecution, for example from the defence, then it will consider whether the Full Code Test is met. In the event that it is not met, the CPS should take over the prosecution and discontinue it.
Can a private prosecution be initiated where the police have administered a caution?
A private prosecution commenced after a police decision to caution for the same offence may be stayed as an abuse, unless the terms of the caution made clear that a private prosecution was not precluded. Alternatively, it may be open to a private prosecutor to judicially review the decision to administer a caution (in order to have that decision quashed); a private prosecution can then be commenced.
How is privilege dealt with in the context of a private prosecution?
Correspondence between the private prosecutor and its legal advisors should be disclosed if it meets the test for disclosure, despite the fact that it would ordinarily be privileged. One example that frequently arises is where such communications go to the issue of the motivation for bringing the prosecution, which could be the subject of an application to stay the proceedings. It should be borne in mind that in a case prosecuted by the state, there would not be a relationship of privilege between the complainant and the CPS lawyer at all.
Legislation and Statutory instruments
Prosecution of Offences Act 1985: http://www.legislation.gov.uk/ukpga/1985/23/contents
Criminal Procedure Rules: https://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu-2015
Crown Prosecution Service (CPS) Legal Guidance: Private Prosecutions: http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/
Code for Crown Prosecutors: https://www.cps.gov.uk/publications/docs/code_2013_accessible_english.pdf
Fraud Advisory Panel: https://www.fraudadvisorypanel.org/
“Evaluating the case for greater use of private prosecutions in England and Wales for fraud offences”, Lewis, C., Brooks, G., Button, M., Shepherd, D. and Wakefield, A. (2014) International Journal of Law, Crime and Justice, 42,3-15
“The private prosecutor as a minister of justice”, Buxton, R. (2009) Criminal Law Review 427 – 433.