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Private prosecutions against public officials

24 June 2020

This article looks at the recent surge of high profile private prosecution cases against public officials that have hit the headlines.  

Any victim of a crime in the UK, whether an individual or a company, has a right to bring a private prosecution. This prosecution is brought independently of the police or any other prosecuting authority. In recent months there has been a series of high profile attempts to bring private prosecutions against public officials.

  1. On 29 May 2019, UK Prime Minister Boris Johnson was issued with a summons to attend Westminster Magistrates Court to face three allegations of misconduct in public office. It was alleged that he lied about the cost of EU membership during Brexit campaigns.[1] Following a hearing at the High Court in June, the case was quashed as it had not been shown that the crime of misconduct in public office could be "equated to bringing an office into disrepute or misusing a platform outside the scope of the office" or that it could be committed by "wilfully making/endorsing a misleading statement…for the purposes of political campaigning".[2]

  2. On 28 May 2020, it was reported that the family of Harry Dunn (a 19 year old killed after being hit by a car driven by Anne Sacoolas, the wife of a US intelligence officer), intend to bring a private prosecution against the foreign secretary, Dominic Raab, for alleged misconduct in public office and perverting the course of justice. The Guardian says Mr Dunn's family claim that Raab did not have the authority to allow Anne Sacoolas to return to the US after the incident, and that he misled parliament in statements following her return to the US.[3]   

  3. Legal Cheek reported on 10 June 2020 that Mahsa Taliefar, a law graduate, is attempting to raise funds in order to bring a private prosecution against Dominic Cummings for breaking lockdown laws.[4]

  4. Separately, the Law Gazette reported on 12 June 2020 that solicitors in Merseyside have taken the first steps in bringing a private prosecution against Dominic Cummings for alleged driving offences committed on a trip to Barnard Castle during the national lockdown. An information has been laid at Peterlee Magistrates' Court in County Durham in order to begin the process. Magistrates will now decide whether to issue a summons to be served on Cummings.[5]

  5. Most recently, The Guardian reported that Nazir Afzal, a former regional chief prosecutor, is supporting another group of UK citizens who are hoping to get Dominic Cummings reinvestigated and prosecuted for breaching the Coronavirus regulations. Afzal has apparently urged the police and Crown Prosecution Service to pursue a case against Cummings, failing which he will consider launching a private prosecution on “behalf of every citizen whose goodwill and generosity led them to make painful sacrifices in order to comply with the law and protect their fellow citizens”.[6]   

The increased media attention surrounding private prosecutions in recent months has naturally piqued the public's interest. This seems to have come about through a combination of factors including police budget cuts continuing to bite, the knock on effect and increased pressures on our criminal justice system coupled with a perception by many people who feeling marginalised with those either in or with power that there "is one rule for them and another for everyone else". This in turn may well have led to an increase in awareness of this alternative means of recourse. 

So…how can someone bring a private prosecution? What tests do they have to pass? What is the process?

A company or an individual can bring a private prosecution against the perpetrator of any crime provided they have exhausted all other resources available to them first. The case must pass a test contained in the CPS Code, namely:

  1. Is there enough evidence against the Defendant to provide a realistic prospect of conviction; and
  2. Is it in the public interest to bring the case to Court?

If both limbs of the test are met, the Court will then consider:

− whether the offence is known to law;
− whether the elements of the offence are met;
− whether it is in time; and
− whether the allegation is vexatious.

On the basis that the case satisfies the above criteria, the Magistrates' Court will then issue a summons based on the information provided. This will then be served on the Defendant, and the case will subsequently proceed through the criminal courts.

It is important to note that the Director of Public Prosecutions ("DPP") can take over any private prosecution which fails to satisfy the CPS Code and discontinue it.  Further, the DPP can also stop a case if it is considered "vexatious" or "malicious", if it is likely to damage the interests of justice, or if it interferes with any other case or is not considered to be in the public interest.

It is also important to remember that private prosecutions can be costly; although you are eligible to claim back costs incurred after you lay your case at the Magistrates' Court from Central Funds, any costs incurred before this point are unrecoverable. However, unlike in other proceedings, it is likely that you will not have to pay the Defendant's costs if you lose your case.  

If you have been a victim of an offence and would like to pursue a private prosecution, our team can help. Please contact Simon Belfield or Jeremy Bird if you require any further information.


https://www.judiciary.uk/wp-content/uploads/2019/05/Ball-v-Johnson-FV-290519.pdf
https://www.lawtel.com/UK/FullText/AC5007697DC.pdf
https://www.theguardian.com/uk-news/2020/may/28/family-of-harry-dunn-to-bring-private-prosecution-against-dominic-raab
https://www.legalcheek.com/2020/06/birkbeck-uni-law-graduate-launches-online-fundraiser-to-privately-prosecute-dominic-cummings/
https://www.lawgazette.co.uk/news/dominic-cummings-faces-private-prosecution/5104622.article
https://www.theguardian.com/politics/2020/jun/14/nazir-afzal-joins-legal-fight-new-inquiry-dominic-cummings

Further Reading

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