Charging and commencing proceedings
Charging decisions and the application of the Full Code Test
The prosecuting solicitor and any counsel instructed must be satisfied that the facts alleged amount to a prima facie case and that they are or will be supported by evidence
Whilst there is no legal requirement for private prosecutors to satisfy the Code for Crown Prosecutors, or to apply the Full Code Test, when deciding whether or not to institute a prosecution, 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. It is considered to be best practice for a private prosecutor and those who advise them to apply the Full Code Test.
The prosecution should document the decision to initiate criminal proceedings, in line with the general good practice of maintaining a detailed, accessible and accurate record of the case as it progresses
Some larger institutional private prosecutors have established relationships with law enforcement agencies, which may make it possible to institute private prosecutions by charge.
Any private prosecutor working closely with a state law enforcement agency should consider whether it is appropriate to agree a Memorandum of Understanding, covering the extent and nature of the co-operation between the private prosecutor and the state agency.
Laying an information/applying for a summons
The majority of private prosecutions will commence with an application for a summons, historically known as “laying an information”. The application must comply with the requirements of Part 7 of the Criminal Procedure Rules5. It should also be accompanied by a schedule of draft charges.
If the accused has been interviewed or given an opportunity to respond to the allegation, details of that response must be included in the application.
In appropriate cases, the Court will be assisted by a skeleton argument or similar document.
The prosecution does not have the right to an oral hearing of the application for a summons but should be prepared to attend an oral hearing if required to do so by the Court. There may be circumstances in which it is appropriate for the prosecution to suggest that such a hearing takes place, for example in cases involving particularly complicated or unusual charges.
If there is an oral hearing, and it is conducted on an ex parte basis, the prosecution should ensure that a careful record is kept of the hearing. The Judge or Magistrate hearing the application for a summons should be encouraged to hand down a brief formal ruling, with reasons.
A magistrate considering a summons application must be informed of any previous decisions of the Court relating to the same subject-matter or proposed proceedings, including any refusal to issue a summons and the reasons for that refusal (Criminal Procedure Rules, Part 7).
The prosecution should give consideration to the following factors in identifying the appropriate Court at which to apply for a summons.6:
- where the offence took place;
- the location of the victim and witnesses; and
- the location of the defendant.
The private prosecutor’s duty of candour
It is essential that prosecutors, public and private alike, comply with their duty of candour when applying ex parte for the issue of summonses in the Magistrates’ Court. The grant of summonses can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken and its importance cannot be overstated7.
It is essential that any application discloses all the information that is material to what the Court must decide, including any material which is potentially adverse to the application or which might militate against it.
The Court must be provided with the whole of the relevant circumstances in order to be satisfied that it is a proper case in which to issue a summons and, even if there is evidence of the offence, to consider whether the application is vexatious, an abuse of process, or otherwise improper.
It must be made clear that the application for a summons is made by a private prosecutor.
The prosecution must ensure that the Court is fully informed of any other disputes between the private prosecutor and the proposed defendants, including civil actions, whether in England and Wales or any other jurisdiction.
The prosecution should also inform the Court of any approach which it has made to state investigative or prosecuting authorities about the matter that is the subject of the prosecution, and inform the Court of any reasons provided by the authority for not accepting the case.
Private prosecutors must be made aware that the withholding of information may lead to a summons being set side.
Where the Court has to consider the question of bail, the private prosecutor must be made aware of the presumption in favour of bail and the application and framework of the Bail Act; they must also be made aware that an application for a remand into custody can be made only within the terms of the Bail Act and cannot be used as a punitive measure or to seek to gain a tactical or other advantage.
Where possible, the prosecution should be in a position to provide sufficient information to allow the Court to make a decision as to whether or not to grant bail (and if so, with what, if any, conditions).
Private prosecutors should seek to obtain the antecedent history (“PNC”) of any defendant and make copies of the same available to the Court. The Police Liaison Office (“PLO”) will frequently not disclose the PNC to the private prosecutor. If that occurs, an order should be sought for the PLO (or the police) to disclose the PNC to the Court. The full name, date of birth and residential address of the defendant will need to be provided in order for the PNC to be located.
If bail is refused, then the prosecution will bear the burden of monitoring custody time limits. It should apply the ‘CPS National Standard for the Effective Management of Prosecution Cases Involving Custody Time Limits’ and the ‘Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates’ and the Crown Court between HMCTS and the CPS’, where applicable
6 Courts Act 2003, section 30
7 R (on the application of Kay and Scan-Thors (UK) Limited) v Leeds Magistrates’ Court)  4 W.L.R. 91.
1 As a matter of common sense as well as professional ethics, a private prosecutor who is the client of a law firm should be regularly updated on the issue of costs. If there comes a time when it is clear that there is a risk that the original costs estimates are going to be exceeded, the private prosecutor should be informed.
2 R (Virgin Media Ltd) v Zinga  5 Costs L.R. 879, at 890