In many cases, a private prosecution will be prepared and/or conducted, at least in part, by a firm or company that is external to the private prosecutor, such as a law, accountancy or private investigative firm. In those circumstances, this Chapter will apply.
At or before the point of engagement, the private prosecutor must be informed of those issues that are specific to a private prosecution.
Those issues might include some or all of the following:
- A private prosecutor is subject to the same Minister of Justice obligations as a public prosecuting authority;
- Advocates and solicitors who have conduct of private prosecutions must observe the highest standards of integrity and of regard for the public interest. They have a duty to act as Ministers of Justice in preference to the interests of the client who has instructed them to bring the prosecution. They owe a duty to the Court to ensure that the proceedings are fair and that the case is dealt with justly;
- . The criminal justice system cannot be used solely or primarily to achieve a purpose for which it is not designed – this will include an overview of the abuse of process jurisdiction (see Chapter 7);
- Those acting on behalf of a private prosecutor must withdraw or refuse to act if they consider the conduct of the private prosecutor to be improper or vexatious;
- Whilst a private prosecution does not have to satisfy the test in the Code for Crown Prosecutors, in practice, a solicitor or barrister is likely to advise against bringing a privateprosecution if the Full Code Test is not met;
- The difficulties that are likely to arise where defendants or material are located outside England and Wales, which will include requirements to comply with applicable local law;
- Information about the investigative process may need to be withheld from witnesses to avoid tainting their evidence;
- The role and obligations of any potential expert witnesses;
- The possibility that a private prosecution will be referred to the Director of Public Prosecutions (“the DPP”) (or otherwise come to their attention) and the process that will be followed by the Crown Prosecution Service (CPS) thereafter;
- 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;
- The possibility that, following referral to the DPP, the proceedings will be taken over and continued by the CPS;
- The requirement to retain material which may be relevant to an investigation and to schedule such material where it will not form part of the prosecution case;
- A full explanation of the prosecutor’s disclosure obligations and the consequences of failing to comply with them;
- There are circumstances in which information/material will not be shared with the client/private prosecutor and where decisions (including disclosure decisions) will be made without reference to them;
- . The application of legal professional privilege in a private prosecution and the circumstances in which it may be necessary to waive or partially waive privilege in order for the proceedings to continue (or to stop proceedings if privilege is not waived);
- The circumstances in which a private prosecution can and cannot properly be terminated and the potential cost consequences;
- The confiscation and compensation regimes; and
- The risks associated with pre-trial publicity
The private prosecutor should be provided with accurate and comprehensive information about their responsibilities and the potential cost consequences of commencing a private prosecution. This should include:
- the importance of having sufficient means to fund the case to its conclusion1;
- the circumstances in which costs may be ordered against the private prosecutor;
- the circumstances in which costs may or may not be recovered from Central Funds or the defendant; and
- advice that, in a substantial case, the Court may consider what efforts have been made by the private prosecutor to examine competition in the market, test it and seek tenders or quotations before selecting the solicitor and advocate instructed when determining the amount of costs that might be payable2.
The private prosecutor should be asked whether a report has been made to a relevant law enforcement agency and, if a report has not been made, the prosecutor should be advised that it has the option to do so. It should not be suggested that a private prosecutor must report a suspected crime to a state agency, but a decision not to do so should be properly recorded, with reasons, and the potential consequences of that decision explained. If a report has been made but the agency has declined to prosecute, the private prosecutor should be advised of the victim’s right of review process, the need to disclose to the Court (when applying for a summons) and the defence (thereafter) the fact that an agency has declined to prosecute, any reasons given for that refusal and the potential impact of that decision on a private prosecution.
The terms of engagement should provide for a preliminary assessment of the evidence in the case and the subsequent provision of advice on issues which may arise as a result of the private prosecutors’ more limited powers to obtain evidence pre-charge, for example, where material is held by a third party or overseas.
In all cases, the issue as to which individual has authority to give instructions and receive advice on behalf of the private prosecutor at any point should be clearly defined in writing. This will include the giving of instructions on the acceptability of pleas.
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