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 is not acting on behalf of the police or any other prosecuting authority or body which conducts 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.
Under the Code for Crown Prosecutors, the Crown Prosecution Service can only bring a prosecution if a case passes both the stages of the Full Code Test: the evidential stage and the public interest stage. Whilst a private prosecutor is not obliged to apply the Full Code Test, it is widely considered best practice for them to do so.
However, 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. Second, the Director of Public Prosecutions (DPP) can take over a private prosecution at any stage and may choose to either continue or discontinue the prosecution. Third, the ability to prosecute certain offences is restricted either expressly by legislation and/or as a matter of policy.
A private prosecution begins when a magistrate issues a summons or warrant following the laying of an information by the private prosecutor. An information is a document that 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.
The general principle is that the magistrate will issue a summons or warrant if an information has been properly laid, unless there are compelling reasons not to do so. In exercising the judicial discretion as to whether to issue a summons, a magistrate should at the very least ascertain: (i) whether the allegation is of an offence known to the law and, if so, whether the essential ingredients of the offence are prima facie present; (ii) that the offence alleged is not “out of time”; (iii) that the court has jurisdiction; and (iv) whether the informant has the necessary authority to prosecute; and it may also be necessary to consider whether the allegation is vexatious.
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 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.
Legislation and Statutory instruments
Prosecution of Offences Act 1985:
Criminal Procedure Rules:
Crown Prosecution Service (CPS) Legal Guidance: Private Prosecutions: