Referral to the Director of Public Prosecutions
There is no obligation on a private prosecutor to notify the CPS, the DPP or any state agency that it is contemplating, or that it has commenced, a private prosecution. Subject to paragraph 6.1.2 (below), a private prosecutor does not require permission from the public prosecuting authorities to bring a private prosecution.
An exception to that general rule applies to those offences that require the consent to prosecute of the DPP or the Attorney General. In such cases, the private prosecutor must seek consent before commencing proceedings. If an offence requires the DPP’s consent to prosecute, and if such consent is given, the CPS, (applying its current guidance) will take over and conduct the prosecution.
Power to take over a prosecution
The DPP has the power under section 6(2) of the Prosecution of Offences Act 1985 to take over private prosecutions, but is not obliged to do so. That power may also be exercised by a crown prosecutor.
Where they conclude that the prosecution does not meet the Full Code Test set out in the Code for Crown Prosecutors, the CPS should take over the private prosecution and stop it.
If the case meets the Test, the CPS has a discretion whether to take the case over and prosecute it or to permit the private prosecution to continue.
The manner in which the power to take over a private prosecution is exercised is explained inthe CPS’s published Legal Guidance8.
The CPS may learn about a private prosecution in a range of ways, but most commonly through a referral to it by (1) a defendant, (2) the prosecutor or (3) the Court. A request to intervene may be made at any stage, by any of these parties, including after the trial has started, between a first trial and a subsequent retrial or following conviction (i.e. before sentence or appeal).
When the CPS receives a request to intervene in a private prosecution, it will contact the prosecutor, the defence and the police to ask for information to be supplied, usually within 14 days.
There is no obligation on the private prosecutor to provide anything to the CPS. That being said, failure to provide adequate information may result in the CPS concluding that the case should be taken over and stopped.
Following a request from the CPS, it is good practice for the private prosecutor to provide:
- A complete set of case papers;
- A note explaining how the case is to be put and why the prosecution contends that it meets the Full Code Test;
- An explanation of the prosecution’s approach to the disclosure of unused material, together with copies of any material which the prosecution considers meets the test for disclosure9;
- Details of any complaint made to the police (or other public investigator/prosecutor) and the outcome of any subsequent investigation
If the private prosecutor so wishes, they may also make representations to the CPS reviewing lawyer as to whether the DPP should exercise their powers to take the case over.
9 See chapter 4.