Ministry of Justice Consultation
On the oversight and regulation of private prosecutors in the criminal justice system
Response of the Private Prosecutors’ Association (“PPA”)
About you
The PPA is a membership organisation for professionals with expertise in bringing (and often also defending) private prosecutions, and academics with an interest in this field.
The key objectives of the PPA are as follows:
- To enable those involved in private prosecutions to identify, endorse and share best practice;
- To provide a forum for the exchange of expert views and specialist knowledge relating to private prosecutions;
- To identify lacunae and limitations relevant to private prosecutions in the existing legal framework and advocate for additional rights and powers which would better enable private prosecutors to assist victims of crime;
- To identify opportunities where private prosecutors can work in association with public law enforcement agencies to provide additional or broader services to complainants;
- To provide complainants and the public with accurate information about private prosecutions and when they are appropriate.
Whilst the PPA does not perform any regulatory function, its members agree that they will abide by the Code for Private Prosecutors.
The work of the PPA in developing that Code is identified and explained within the Consultation Paper, at page 12; we address the creation of the Code and the approach of Courts to it further below.
The PPA is grateful for the opportunity to respond to this Consultation and its members remain available to assist the Government as it continues its important work in this area.
We take each of the questions posed in the Consultation Paper in turn, using the numbering from the Paper (as opposed to the electronic questionnaire, where the numbering differs).
Chapter 1: Consistency of Standards and Accountability
Code of Practice
Question 5
Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice?
Answer to question 5
Yes. It is abundantly clear, if only from the increase in recent applications for judicial review, that private prosecutors are not always sufficiently mindful of the duties which they owe to the Court. In The King (on the application of Neeraj Handa) v Westminster Magistrates’ Court [2025] EWHC 538 (Admin), for example, the Deputy Chief Magistrate discovered that the Prosecutor had not made any conscientious attempt to comply with the duty of candour and that the prosecution “as a whole” were “either unwilling or at the least, incapable of discharging the full measure of the responsibilities of that role”. In Morjaria v Westminster Magistrates’ Court [2023] EWHC 2936 (Admin), a failure to put relevant and disclosable material before the court prior to the issue of the summonses was a highly serious and significant breach of the duty of candour.
The purpose of the Code is to provide a clear statement of best practice in the conduct of private prosecutions. It was described by Sir Peter Gross, upon its launch, as “a most helpful overview of the duties resting on private prosecutors (or those acting for them), the conduct expected of them and some core issues which are inherently likely to arise.” He described the ethos underpinning the Code as “clear and, for my part, most welcome” and concluded that in navigating the “challenging waters” of a private prosecution, “the Code provides valuable guidance.” More recently, it was described by the Recorder of Westminster in R v Alsaqabi in this way: “although not binding anyone … the Code for Private Prosecutors helpfully sets out in summary form the common law and statutory duties imposed upon private prosecutors. For example, at paragraph 2.2.2 the Code sets out the obligations and duties incumbent upon a private prosecutor (and those acting for them) at law, and identifies other practicalities to be taken into account… Other duties and obligations of the private prosecutor imposed by the Code for Private Prosecutors and/or at law are referred to further on in the Code…”.
There can be no doubt that the Code provides valuable guidance, identifying clearly and in one place the duties on a private prosecutor and the particular issues to which the Prosecutor should have regard. The difficulty, of course, is that adherence to it by private prosecutors and those who act on their behalf is voluntary; it has no legal force and is not binding. Increasingly, those criminal courts most used to dealing with private prosecutions (such as Westminster and Southwark) will expect a prosecutor to assure the Court of substantial compliance with the Code. An inability to do so will raise serious questions in the mind of most judges as to the propriety of the prosecution. That is, however, by no means universal. The lack of certainty and consistency which the Code’s more sporadic application can cause would be eradicated entirely by the introduction of a mandatory Code, be it this version (which draws on the work of very experienced prosecutors and investigators), or some variation of it.
It will be obvious from the PPA’s introduction of this Code that we see no downside in such a document. It is our view that a private prosecution should only be contemplated on the basis that it will be conducted in compliance with the PPA Code (or similar) and further, that prosecuting counsel will be in a position to assure the Court of trial that that is the case.
Despite the premise of the question (and the scope of the consultation), we also see no good reason why the steps being taken to improve the quality of private prosecutions should not apply to all private prosecutors. Experience has shown that some of the most egregious conduct occurs in cases of individuals (often very well resourced) prosecuting on their own behalf (whether with the assistance of solicitors/counsel or otherwise): see for example the cases of Handa, Morjaria, Boris Johnson and Scan Thors/Kay.
Question 6
If you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice, do you think this code should apply to:
Answer to question 6
All private prosecutors bringing prosecutions. In the context of a private prosecution, the prosecutor personally bears an obligation to ensure that the proceedings are conducted fairly throughout; the prosecutor is himself subject to the duty to act as a Minister of Justice. That is true of all private prosecutions. See R v Belmarsh Magistrates’ Court ex p. Watts [1999] 2 Cr App R: “…[W]e do well to remind ourselves that a private prosecutor … is still a prosecutor, and subject to the same obligations as a minister of justice as are the public prosecuting authorities.” See also R v Zinga [2014] 1 WLR 2228 on this topic. All too often the universal application to all prosecutors of the requirement to act as a Minister of Justice is overlooked; we respectfully suggest that that should not occur here.
Question 7
If you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice, please provide your opinions on requirements that could be included in the code (select all that apply):
Answer to question 7
Any such Code should include, at least:
- A requirement to consider whether there is sufficient evidence to secure a conviction;
and - A requirement to review the public interest test before commencing the prosecution, and keep it under review throughout proceedings.
The PPA commends the second edition of its own Code to the Directorate. As we have said elsewhere, it is the product of extensive work and consultation by those at the coal face of private prosecutions, who have borne witness to the sorts of behaviours that have rendered the introduction of a Code necessary. It addresses: Client engagement; the Investigation; Disclosure; Charging and commencing proceedings; Referral to the Director of Public Prosecutions; Abuse of process; Interaction between civil and criminal proceedings; Trial, Sentencing, confiscation and ancillary orders; and Costs.
Question 8
If you are answering this consultation on behalf of an organisation that brings private prosecutions: do you currently follow a Code (for example, the Code for Crown Prosecutors) when bringing prosecutions?
Answer to question 8
Yes: the PPA Code for Private Prosecutors and the Code for Crown Prosecutors, where applicable.
[Questions 9-11 are not applicable to the PPA]
Question 12
If you have any other thoughts about a code for private prosecutors which have not been captured in the questions above, please provide these.
Answer to question 12
For the avoidance of doubt, we are of the view that the requirement to comply with any Code of Practice for Private Prosecutors should apply to all legal or other professionals engaged by a client (individual or organisation) to represent them in relation to an actual or prospective private prosecution.
Inspectorate
Question 13
Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be subject to inspections from an inspectorate?
Answer to question 13
No
[Questions 14-15 are not applicable]
Question 16
If you have any other thoughts about an inspectorate for private prosecutors which have not been captured in the questions above, please provide these.
Answer to question 16
The statutory right privately to prosecute another citizen is an important one. There is no doubt that the right to bring private prosecutions is still firmly part of English law, and that it can fairly be seen as a valuable protection against an oversight (or worse) on the part of the public prosecution authorities. It is well recognised that private prosecutions are capable of advancing the public interest and the interests of justice; the consultation itself recognises the importance and value of private prosecutions at pages 13 and 15. They are also however,
when the right is abused, capable of undermining the integrity of the criminal justice system. Not infrequently, applications are made with scant regard for the onerous obligations borne by private prosecutors, who must act at all times as Ministers of Justice. In order fairly to retain that right, a body of authority and guidance has developed to protect the courts against being deployed as an engine of vengeance or the improper pursuit of financial gain by those who are either ignorant of, or ignore, their obligations. The criminal courts, and in particular the
magistrates’ courts who most frequently deal with such cases, are experienced in identifying and stopping such cases. It is important that any additional measures which are introduced to improve standards do not inadvertently restrict the availability of this right or the accessibility of the Courts. A Code has the advantage of drawing together the authority and guidance which already exists, to the benefit of all parties to the process. The risk, as we see it, from the introduction of inspections and/or accreditation is that it gives the impression (and runs the risk) of making the justice system less accessible. It is also arguably unnecessary because it is for the courts, rather than some (new) external body, to control and police private prosecutors. A well-structured and informative Code will improve this process.
Accreditation
Question 17
Do you think there should be a system of accreditation for private prosecutors? If so, please specify whether you think this should be mandatory or voluntary.
Answer to question 17
No.
[Questions 18-19 are not applicable]
Question 20
If you have any other thoughts about accreditation for private prosecutors which have not been captured in the questions above, please provide these.
Answer to question 20
Please see answers given in respect of the ‘Inspectorate’ section above. The same reasoning applies here. There is a significant opportunity now to improve standards; to collate the available authority and guidance; and to improve the process of data collation, to the benefit of all parties to a private prosecution (a court included). That will supplement the important work already done by the Criminal Procedure Rules Committee in Part 7 of the Rules. It is clear from cases like R. (McGill) v Newcastle Magistrates’ Court [2024] EWHC 1207 (Admin) that changes to the Rules are already having an appreciable impact on the way in which applications for summonses are approached by the lower courts.
The additional burden of inspections and accreditation (to say nothing of the additional resource) is unnecessary if the proposed Code is mandatory and if Courts are encouraged to identify and stop cases which are not proper cases for the issuing of a summons. There is also scope for greater use of the court’s costs jurisdiction to deter unmeritorious applications.
Should these measures not be sufficient, then a further safeguard that may be worthy of consideration – but which would likely benefit from further consultation with all stakeholders, including the Court and ‘volume’ private prosecutors – would be a requirement on the applicant to notify the prospective defendant of an application for a summons unless there is a good reason not to do so. That would increase the number of inter partes applications (where the majority are presently considered ex parte) but would also ensure that a Court’s early oversight of the process is more fully informed. The resource and timing implications would, however, require further consideration and consultation as this is a significant departure from the existing position.
Chapter 2: Improving Safeguards to Justice in the Single Justice Procedure
This section relates to the Single Justice Procedure at questions 21 to 27 and is addressed shortly by the PPA.
Questions 21-27
21. Do you think that Single Justice Procedure prosecutors should be required to take steps to engage with the defendant before commencing a prosecution, to understand their personal situation (mitigating circumstances) and assess whether the prosecution is in the public interest? Yes
22. Do you think the prosecutor should be able to view the mitigating circumstances submitted to the court by a defendant before the case is reviewed by a magistrate? Yes
23. If you agree that the prosecutor should be able to review the mitigating circumstances before the magistrate reviews the case, do you think there should be a statutory requirement for them to review this in all cases, and conduct a further assessment of whether it is in the public interest to continue the prosecution, then confirm to the court that they have done this? Yes
24. Should there be a requirement for prosecutors to allow a certain period of time for people to respond to an initial notification in order to provide details of any their circumstances prior to issuing an SJP Notice? Yes – up to 28 days
25. Should there be a requirement to send a certain number of written notifications before issuing a Single Justice Procedure Notice? Yes: two Notices would be a proportionate given that a conviction may follow from the Notice.
26. This question is for respondents responding to this consultation on behalf of an organisation that brings prosecutions through the Single Justice Procedure: do you currently engage with the defendant and request any information on their circumstances prior to commencing a prosecution, including assessing their vulnerability? Not applicable
27. If you have any other thoughts about the SJP which have not been captured in the questions above, please provide these.
Answer to question 27 as follows:
We consider it essential that the Notice through which the Prosecutor will take steps to engage with the Defendant must provide clear guidance to the latter when it comes to the information that they may choose to provide to assist the Prosecutor with their decision.
In particular, it should be made clear that, in addition to providing details of the Defendant’s personal/family circumstances, the Defendant may also wish to provide additional information regarding the circumstances of the alleged offence and how it came about.
Proceeding in this way should go a long way towards ensuring that the Prosecutor has sufficient material to make an informed decision regarding the public interest.
As identified in the literature that accompanies the consultation, it is astonishing that the SJP procedure was used to prosecute over 60,000 cases unlawfully because the offence prosecuted carried a prison sentence. If the SJP is to remain, a safeguard should, we suggest, be introduced to ensure that legal advisors check the validity of the Notice and that the offence prosecuted is one which can lawfully be brought under the SJP.
Chapter 3: Improving Transparency
Question 28
Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to register with HMCTS prior to bringing a prosecution?
Answer to question 28
Yes
Question 29
If you agree that some or all private prosecutions should be required to register with HMCTS prior to bringing a prosecution, should this requirement apply to (please select one):
Answer to question 29
Any entity or organisation commencing or likely to commence 5 or more private prosecutions in a year.
In addition to the above, the requirement to register should also apply to any bodies using any public funds to privately prosecute (e.g. government or quasi government organisations, councils, charities or crowd-funded prosecutions).
Question 30
Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to publish their own data on the prosecutions they bring?
Answer to question 30
Yes
Question 31
If you think some or all private prosecutors should publish data, what data should they be
required to publish?
Answer to question 31
- Number of prosecutions brought per year
- Offence types of prosecutions brought
- Resulting number of convictions
- Other, please state
The requirement to publish data should only apply to entities or organisations bringing 5 or more private prosecutions a year or which are using public funds to bring private prosecutions (as set out at Q. 29 above).
In addition to the factors indicated above, the data should include the court centre to which the application was made, whether the case was referred to the CPS and the outcome of any such referral.
It is unclear from the consultation whether the requirements to publish data would apply to lawyers representing private prosecutors. In our view, the requirements to publish data should apply to any law firm or barrister on the record representing a private prosecutor (whether individual or corporate) from the point of application for summons to conclusion of the matter.
Question 32
Do you agree that private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to assess their performance and/or regularly audit their own prosecutions?
Answer to question 32
Yes
Question 33
If you agree that private prosecutors should be required to assess their performance and/or regularly audit their own prosecutions, do you think this information should be published?
Answer to question 33
No
Question 34
If answering on behalf of an organisation that brings private prosecutions: Does your organisation collect any data regarding the number of private prosecutions brought per annum? If so, please detail if your organisation publishes this data, as well as the time and resource costs of collecting (and if applicable publishing) this data. If your organisation does not collect or publish data, if possible please estimate how much time and resource collecting and publishing this data would require.
Answer to question 34
N/A
Question 35
If you have any other thoughts about transparency in private prosecutions which have not been captured in the questions above, please provide these.
Answer to question 35
Whilst increased transparency is important, so too is the critical protection for prospective defendants which is contained within Part 7 of the Criminal Procedure Rules. Rule 7.2(12) provides that applications to issue or withdraw a summons should be heard in private, unless the Court directs otherwise. That restricts any damage that might be caused by wholly unmeritorious applications, which have been subjected to no judicial scrutiny.
Private Prosecutors’ Association
8 May 2025
