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.

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.