The vast majority of criminal prosecutions are brought by a state body with the statutory power to prosecute. In England and Wales, this is usually the Crown Prosecution Service (CPS) but also includes the SFO, CAA and various government departments.

But the right to prosecute is not limited to these bodies. Under section 6 (1) of the Prosecution of Offences Act 1985 any individual, company or organisation can bring a criminal prosecution.

For some time, organisations such as the RSPCA and local authorities have used this power to take alleged offenders to court. The RSPCA has brought numerous prosecutions in respect of animal cruelty allegations.

Until recently the right to prosecute has rarely used by individuals. There has, in recent years, been something of a sea change in attitude to this right. Private prosecutors are becoming an increasingly common courtroom sight as victims of crime seek to hold an offender to account and secure an equitable outcome.

Why privately prosecute?

The primary reason individuals and organisations seek to prosecute privately is disillusionment. Having made a complaint of criminality, a victim of crime may easily become frustrated with law enforcement’s lack of progress. Victims may also disagree with a decision not to bring criminal charges.

A private prosecution can offer these people a more efficient way of holding a wrongdoer to account.

A successful private prosecution can be a strong deterrent to others to behave in a similar manner and can protect the public. Moreover, the ability to deprive an offender of any proceeds from their wrongdoing if successfully prosecuted can offer a practical alternative to lengthy and costly civil proceedings.

How to start private prosecution

The first step to any private prosecution to apply to a Magistrates’ Court to issue a summons or warrant. If granted, this launches proceedings and requires the subject to attend court. The only restriction to launching a private prosecution are offences which require the consent of the Director of Public Prosecutions (DPP) or Attorney General.

There are strict rules about what must be included in an application for a summons and it is vital that this stage is completed correctly to avoid unnecessary delay and costs.

Obligations of a private prosecutor

A private prosecutor must ensure that the law is properly applied, that relevant evidence is put before the court at each stage and that obligations of disclosure are complied with.

Anyone bringing a private prosecution – as well as their lawyers – is required to comply with the same statutory disclosure regime as state prosecutors. In practice, this means that a private prosecutor must provide all material that may be relevant to the case to their lawyers who must disclose to the accused any material which might be capable of assisting the defence or undermine the prosecution case.

Failures to comply with these strict obligations could result in a private prosecution being stopped by the court, an adverse costs decision or the DPP taking over and stopping the prosecution.

Recovery of costs

At the end of a case, a private prosecutor can apply for recovery of the costs involved in bringing a prosecution. This is the case even if the prosecution is unsuccessful. A costs award is not dependant on the accused having the means to pay the prosecutor’s costs.

If there has been any bad faith or improper conduct by, or on behalf of, a private prosecutor can lead to costs being awarded against them.

Victims of fraud

Depending on the circumstances of a case, a private prosecution may be used alongside civil litigation by victims of fraud. This dual-pronged approach can be an effective means of achieving restitution for organisations and individuals who have lost significant amounts of money to fraud, but for whom the police and SFO are proving ineffective.

Anyone who finds themselves in this situation is advised to take legal advice from a law firm with expertise in criminal and civil litigation which can provide a holistic and pragmatic strategic approach.

Defending private prosecutions

The democratisation of the prosecution process has advantages and disadvantages for justice. While it opens the door for genuine victims of crime to achieve justice, it is also open to abuse by people bringing ill-founded and malicious prosecutions.

Effective defence against private prosecutions requires a deep understanding of the tactics and strategy of regular criminal defence, but also of the specific issues in private cases such as resisting the issue of a summons, applying to the DPP to stop a prosecution and presenting abuse of process arguments.

Experience

Hickman & Rose’s team of expert Serious and General Crime lawyers are members of the Private Prosecutors’ Association and comply with the Code for Private Prosecutors. They are also experienced in defending private prosecutions and has a proven track record of stopping those cases before they come to trial.