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While most criminal cases in England and Wales are brought by the Crown Prosecution Service (or other state prosecutors such as the Serious Fraud Office) there is a long-established right for individuals and companies to bring private prosecutions in their own right, and a growing preference to do so especially where allegations of fraud are being made.
Individuals are now more likely than ever before to find themselves under threat of private prosecution by a former employer, a company they have done business with, or a disgruntled individual.
Being threatened with – or the subject of – a private prosecution can be a worrying experience. Facing the risk of criminal proceedings brought by a prosecutor acting in their own interests rather than on the state’s behalf is not something to take lightly.
However, private prosecutors are obliged to operate under the same obligations as state prosecutors when bringing these cases. In practice, they often fail to meet those high standards. In light of this, safeguards exist into weed out unmeritorious or unfair private prosecutions. This includes multiple opportunities for the state (via the CPS and courts) to intervene and stop a case in its tracks.
Defending a private prosecution (and any investigation that precedes it) therefore differs significantly with other prosecutions. Very often the key, for anyone facing the threat of private prosecution, is understanding the different considerations that apply to private prosecutions and adopting a strategic approach from the outset.
Hickman & Rose has a long history of successfully defending those accused by private prosecutors of the most serious offences (both financial in nature and otherwise)
Section 6(1) of the Prosecution of Offences Act (POA) 1985 preserved the historic right of an individual or entity to bring a private prosecution in England and Wales. In theory, therefore, any individual or organisation can bring a private prosecution.
However, there are some limitations. In certain serious cases the would-be prosecutor must seek the consent of either the Attorney General or the Director of Public Prosecutions before they can start proceedings.
There is no legal aid available to private prosecutors, so cases must be self-funded. However in many cases (but by no means all) the costs of bringing a private prosecution may be recoverable by the prosecutor.
Like any state prosecution, a private prosecution should be preceded by a fair and objective investigation of the relevant events, to establish whether any crime was committed and if so, by whom.
This is not always the case, however, and suspects should tread carefully with engaging with investigators.
Private prosecutors should obtain evidence during their investigation from a range of sources. Sometimes, they may struggle to obtain certain types of evidence because they (rightly) lack the powers of investigation of state investigators such as the police or National Crime Agency. In limited cases, they may seek the assistance of the court via so-called Norwich Pharmacal orders, which can compel third parties to hand over material.
Private prosecutors may seek an interview with a suspect. This should be conducted “under caution,” which is the formal warning given at the start of the interview about the use to which the interview may be put.
However, in a significant difference from interviews conducted by state investigators, private prosecutors should not tell suspects that an “adverse inference” might be drawn by any failure to answer questions. “Adverse inferences” refer to the ability for a judge to permit a jury to hold a defendant’s silence at interview against them, and are the reason for the line in the standard caution that says “… it may harm your defence if you do not mention when questioned something which you later rely on in court.”
In light of this, different tactical considerations arise when a suspect is invited to an interview by a private prosecutor.
All private prosecutions begin in the magistrates’ court with what is called the ‘laying of information’ and an application for a ‘summons.’ These are the formal processes by which a criminal case begins and by which the defendant is required to attend court.
Before issuing a summons, the court must consider whether various tests are satisfied. These include being satisfied that the allegation constitutes an offence in England and Wales; and that the essential elements of the offence are, on the face of it, present. The court should also verify that the application is not vexatious, an abuse of the court’s process, nor otherwise improper.
In some cases, the prosecutor or court will invite the potential defendant to take part in (and resist) the application for the summons. However an application for a summons can also be made without notifying the defendant.
If the defendant is not notified in advance, then the first they may know of a private prosecution could be when they receive a summons to attend court. In these cases, the defendant will then be given the opportunity to challenge the issuing of the summons, in the magistrates’ court. They may wish to argue that the relevant tests were not met, and/or that the court was not given the full picture when the prosecutor applied for the summons.
The magistrates’ court’s decision on the summons can be challenged by either party by a claim for judicial review in the High Court. The summons process is therefore a crucial opportunity for a potential defendant to have a private prosecution stopped at the outset.
As discussed above, it is always worth exploring whether to challenge the issue of the summons, and thereby stop the prosecution before it begins. If that fails, defendants should be alert to other opportunities to stop the case before trial.
One such route lies in section 6(2) of the POA 1985, by which the CPS can at any stage intervene in a private prosecution either to conduct the prosecution itself or to discontinue the case. The CPS can take over and discontinue a private prosecution if the evidence does not meet its own evidential threshold, or if it is not in the public interest. It may also do so if it considers the private prosecution has been brought for malicious reasons, or if it interferes with another criminal matter. Defendants may wish to contact and engage with the CPS in order to persuade it to get involved in this way.
There are also the mechanisms in all criminal proceedings that are designed to stop unmeritorious cases reaching a conclusion: that might by an application to have the case “stayed” (i.e. stopped) as an abuse of process (because the prosecution is an affront to the court’s sense of justice, or because the defendant cannot have a fair trial). Or, in the Crown Court, a judge can stop a case before trial following an ‘application to dismiss,’ in which the defence argue that no jury could properly convict.
Hickman & Rose’s business crime and regulatory law team have a track record of acting successfully for the defence in private prosecution matters. The firm’s expert lawyers combine deep experience in defending complex cases brought by the state with a detailed understanding of the issues that make private prosecutions different.
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