FAQs Archive - Page 2 of 3 - Private Prosecutors' Association

Q: 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.

Q: 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” .

Q: 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.

Q: 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 civil or other proceedings.

Q: 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.

Q: 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 there is insufficient evidence or a that 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 mistakes, 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.