Frequently Asked Questions
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.
When considering whether to issue a summons:
(1) The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and that the informant has any authority necessary to prosecute.
(2) If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so – most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.
(3) Hence magistrates should consider the whole of the relevant circumstances to enable them to satisfy themselves that it is a proper case to issue the summons and, even if there is evidence of the offence, should consider whether the application is vexatious, an abuse of process, or otherwise improper.
(4) Whether the applicant has previously approached the police may be a relevant circumstance.
(5) There is no obligation on magistrates to make enquiries, but they may do so if they think it necessary.
(6) A proposed defendant has no right to be heard, but magistrates have a discretion to:
- Require the proposed defendant to be notified of the application.
- Hear the proposed defendant if they think it necessary for the purpose of making a decision.
There is no requirement for a private prosecutor to have approached the police first. However, when a Magistrates’ Court is considering whether to issue a summons, whether or not the person seeking the summons has approached the police may be relevant. The failure of the police to proceed in a particular case may, for example, demonstrate that it is hopeless.
There is no obligation on the part of the private prosecutor to notify the CPS that it is undertaking a private prosecution.
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.
The CPS Guidance on private prosecutions states that the general rule is that the CPS should make disclosure whenever it is in the interests of justice to do so. It goes on to say that it is unlikely to be in the interests of justice for the CPS to disclose case material to a potential private prosecutor if that material has been reviewed and is not in itself considered to be sufficient to pass the evidential stage of the Full Code Test.
The CPS considers that any voluntary disclosure should be even handed between the parties and therefore any documents supplied to the private prosecutor at his or her request should also be supplied to the defendant and vice versa.
The CPS will apply its legal guidance on Disclosure of Material to Third Parties when considering voluntary disclosure of the documents and information it holds.
Once a private prosecution has commenced, the private prosecutor can apply for a witness summons to secure the production of relevant material.
The Director of Public Prosecutions (the DPP) retains the right under s.6(2) of the Prosecution of Offences Act 1985 to take over a prosecution.
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. In the event that the Full Code Test is met, the CPS will consider whether there is any other reason why the private prosecution should be taken over and discontinued, for example:
- it interferes with the investigation of another criminal offence;
- it interferes with the prosecution of another criminal charge;
- it is vexatious or malicious;
- the offence has already been disposed of.
If there is no other reason to discontinue it, then the DPP will consider whether the prosecution should continue as a private prosecution, or whether the DPP should take it over. This decision will be dependent on a number of factors, including: how serious the offence is, the complexity of any disclosure, and any issues of witness anonymity.
There are also some circumstances in which the DPP will take over a prosecution as a matter of public policy.
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”.
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.
Legal costs can often be recovered by a private prosecutor, either from central funds pursuant to section 17 of the Prosecution of Offences Act 1985 (whether or not the defendant is convicted) or, in some circumstances, from the defendant.
Section 17(1) does allow a private prosecutor who is awarded costs out of central funds to recover costs even if they have been incurred prior to the formal commencement of the prosecution; even if incurred before the issue of a summons or the laying of an information, steps may properly be regarded as having been taken ‘in the proceedings’ for the purposes of s.17(1), see Football Association Premier League v Lord Chancellor [2021] EWHC 755 (QB).
Where a successful private prosecutor has incurred investigative, they may also seek to recover these from the defendant.
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.
The ‘standards’ required of those conducting a private prosecution are of the highest order:
“…Advocates and solicitors who have conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest and duty to act as a Minister for Justice (as described by Farquharson J) in preference to the interests of the client who has instructed them to bring the prosecution[1]”.
Lawyers instructed by a private prosecutor are therefore expected, however difficult or inconvenient it may be, to ensure that the prosecution is conducted according to a set of principles established in 1986 by a committee tasked with reviewing the role of prosecuting counsel. In the introduction to its Report the committee wrote:
“There is no doubt that the obligations of Prosecution Counsel are different from those of Counsel instructed for the defence in a criminal case or of Counsel instructed in civil matters … though his description as a ‘Minister of Justice’ may sound pompous to modern ears it accurately describes the way in which he should discharge his function.”
[1] Zinga [2014] 1 WLR 2228
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.
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.
A private prosecution commenced after a police decision to caution for the same offence may be stayed as an abuse of process, unless the terms of the caution made clear that a private prosecution was not precluded. Alternatively, it may be open to a private prosecutor to judicially review the decision to administer a caution (in order to have that decision quashed); a private prosecution can then be commenced.
It is essential to remember that the standards applicable to those conducting a private prosecution are of the highest order. That starts with the requirement that an application for a summons must disclose all of the information that is material to the decision of the Court, which includes of course any material adverse to the application or which might militate against it.
The nature and extent of the duties upon private prosecutors, at all stages of the process, are set out in the PPA’s Code for Private Prosecutors, which can be found here: https://private-prosecutions.com/wp-content/uploads/PPA-Code-for-Private-Prosecutors.pdf
Useful Links
Legislation and Statutory instruments
Prosecution of Offences Act 1985:
http://www.legislation.gov.uk/ukpga/1985/23/contents
Criminal Procedure Rules:
https://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu-2015
Guidance
Crown Prosecution Service (CPS) Legal Guidance: Private Prosecutions:
https://www.cps.gov.uk/legal-guidance/private-prosecutions