Most investigations and prosecutions are carried out by public authorities. A private prosecution is “a prosecution started by a private individual or entity who/which is not acting on behalf of the police or other prosecuting authority” (CPS Legal Guidance on Private Prosecutions).

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. In Rubin v DPP [1990] 2 QB 80, Watkins LJ expressed the view that a prosecution should be brought in the name of an individual. This proposition was, however, doubted by Woolf LJ in Ealing Justices, ex parte Dixon [1990] 2 QB 91. Nonetheless, his lordship said (at p. 101) that he would ‘regard it as preferable’ for an individual to be named, albeit that he is acting on behalf of a body corporate.

As Sir Richard Buxton observed, in The Private Prosecutor as a Minister of Justice, [2009] Crim LR 427, at p.427:

“A private prosecutor will almost by definition have a personal interest in the outcome of a case.”

The Courts have also acknowledged that many private prosecutions will be brought with mixed motives, most obviously where the prosecutor claims to be the victim of the alleged misconduct.  Such a situation may call for heightened scrutiny of the process, to ensure that the case is conducted fairly, but will not of itself be a bar to the proceedings.

In R. v Bow Street MSM, ex p South Coast Shipping Company Limited [1993] QB 645, the Divisional Court observed that,

“…if there is evidence that the defendant has been guilty of an offence then a desire to see him prosecuted and, if found guilty, punished is not an improper motive…even if [P’s] motives were mixed the court should be slow to halt a prosecution unless the conduct of the prosecution is truly oppressive”

In Serif Systems Ltd, Re [1997] EWHC Admin 369, Auld L.J. identified a useful touchstone for consideration of this issue:

“One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.’’

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.

There is no legal requirement for a private prosecution to satisfy either of these tests. However, the CPS Legal Guidance on Private Prosecutions provides that a private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met. Therefore, in practice, a solicitor or barrister is likely to advise against bringing a private prosecution if the Full Code test is not met.

Importantly, 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.

Yes. First, all magistrates have a judicial discretion to refuse to issue a summons or to set aside a summons once issued. The decision to issue a summons (or a refusal to set aside a summons) can be challenged by way of judicial review. Second, the Director of Public Prosecutions (DPP) can take over a private prosecution at any stage and may choose to either continue with or discontinue the prosecution. Third, the ability to prosecute certain offences is restricted either expressly by legislation and/or as a matter of policy.

The CPS Legal Guidance on Private Prosecutions provides as follows:

“If an offence requires the DPP’s consent to prosecute, the private prosecutor must seek that consent. If the proposed prosecution passes the Full Code Test, the CPS will take over the prosecution. Conversely, if the proposed prosecution fails the Test, the DPP’s consent to prosecute will not be given.”

The written charge and requisition procedure is not available in private prosecutions, which are instead commenced by making an application to the magistrates’ court for the issue of a summons (historically known as ‘laying an information’). The Application 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. Part 7 of the Criminal Procedure Rules contains rules about how the prosecutor must start a case and how the prosecutor must explain what the defendant is accused of doing.