With 333,887 outstanding cases at the Magistrates’ Court reported in June 2022, it is not surprising to learn that there has been a steady rise in the number of private prosecutions.
We outline below what private prosecutions are and what challenges private prosecutors face today.
What is a private prosecution?
A private prosecution is a criminal prosecution started by a private individual or body, who is not acting on behalf of the police or any other prosecuting authority. Private prosecutions offer victims of crimes, which are of little interest to police or which exceed police resourcing, an alternative avenue to justice.
Anyone can bring a private prosecution under Section 6 of the Prosecution of Offences Act 1985 (1). The burden of proof lies with the prosecutor, who must gather evidence and prove that the defendant committed the alleged offence beyond a reasonable doubt. Lord Wilberforce stated that private prosecutions go 'back to the earliest days of our legal system and remain a valuable constitutional safeguard against inertia or partiality'(2). A famous example of a private prosecution was the 2019 prosecution of Boris Johnson for misconduct in a public office, which was funded and brought by members of the public.
What are the obstacles to private prosecution?
The absence of a regulatory framework for private prosecutors, combined with the intermingling of financial and public interests has raised concerns of partiality. Commentators have criticized that private prosecutions put a price tag on justice, endangering the balance of power between corporate and individual litigants. In response, the Courts have developed safeguards to protect private prosecutions against abuse. Those seeking private prosecutions must carefully navigate these safeguards to avoid unsuccessful applications and wasted costs orders.
The Code for Crown Prosecutors
Private prosecutors must consider the evidential test contained within the Code for Crown Prosecutors before laying information before the Court. Where the test has not been meet, the Director of Public Prosecutions (DPP) may take over and discontinue the case.
The evidential test requires that prosecutors consider whether there is sufficient evidence to found a realistic prospect of conviction. This includes assessing the reliability and credibility of available evidence. The 2020 Post Office Horizon Public Inquiry has highlighted both the importance of ensuring that evidence is reliable and the problems that can arise when the lines between victim, investigator and prosecutor become blurred. The Post Office privately prosecuted more than 700 Post Office employees based on information from their Horizon computer system. It was subsequently established that the computer system, and therefore the prosecution was flawed, leading to claims for compensation against the Post Office totalling £58 million.
Those seeking a private prosecution must carefully review the evidence available to them. Private Prosecutors should consider sending prospective defendants a PACE compliant interview letter or an invite to a voluntary interview to collect as much evidence as possible.
Standards of conduct
A private prosecutor must maintain the same standards of conduct as a public authority, including a duty of full and frank disclosure. The Courts will proactively safeguard the integrity of private prosecution proceedings against misconduct.
A private prosecutor who issues proceedings with good cause will generally recover costs from central funds pursuant to section 17 of the Prosecution of Offences Act 1985 (3). However, costs can be awarded against a prosecutor if the court decides that the prosecution was vexatious or improper. This was the case in R (on the application of Kay and another) v Leeds Magistrates' Court(4), where the court held that ‘compliance with the duty of candour is the foundation stone’ upon which decisions to issue a summons are taken and its ‘importance cannot be overstated'.
Alongside considering whether the essential ingredients of the offence are present, the Magistrates must ascertain:
- That the offence alleged is not time-barred
- That the Court has jurisdiction to hear the application
- That the informant has the necessary authority to prosecute.
- Most importantly, that the application is not vexatious, an abuse of process, or otherwise improper.
For this reason, it is important that private prosecutors carefully observe their duties of disclosure and self-assess whether their application could be perceived as an abuse of process. The safest option for private prosecutors is to closely follow CPS guidance.
Discontinuance by the Director of Public Prosecutions
Private prosecutors are always at the mercy of the DPP, who has the power to take over any prosecution under section 6(2) of the Prosecution of Offences Act 1985, and discontinue it under section 23. The DPP will normally discontinue a case where the evidential stage or the public interest stage of the Full Code Test has not been met; or where the prosecution would be damaging to the interests of justice. Further guidance on when the DPP will and will not exercise its discontinuance powers is available on the CPS website. Of 50 private prosecution referred to the CPS between April 2019 to March 2020, the CPS continued 3%, declined to take over 37%, and decided to discontinue a shocking 60%. This highlights the importance of ensuring that applications for private prosecutions are professional, organised and supported by the same standards of evidence seen in public prosecutions.
Wasted cost orders for failures to disclose
When it comes to disclosure, private prosecutors are subject to the same obligations as public prosecuting authorities. A wasted cost order may be made against a private prosecutor should they fail to discharge their duty of disclosure. In (Holloway) v Harrow Crown Court, the Court made an adverse costs order against a private prosecutor as they had withheld evidence that “presented a picture flatly contradictory to the prosecution case”(5). Section 19A of the Prosecution of Offences Act 1985(6) also allows cost orders made against private prosecutors to focus on “any improper, unreasonable, or negligent act or omission on the part of any representative”.
Prosecutors should consider the Attorney General’s Guidelines on Disclosure, which provides prosecutors guidance on discharging their duty of disclosure. Private prosecutors should also only begin a prosecution when they have their case in a “trial ready” condition.
Another difficulty for private prosecutors is how to manage the disclosure of unused material. The CPS employs a disclosure officer to ensure impartiality and to safeguard the disclosure process. If a private prosecutor wants to reduce the risk of wasted costs orders, they should consider whether it is appropriate for them to identify relevant and unused material, or whether an independent party would be better suited to manage this process.
In relation to third party material, private prosecutors lack the investigatory powers and authority of the CPS, and so may face more difficulties compelling third parties to share documents with them.
Private prosecutions are an attractive way for victims to obtain justice when the police will not act. However, those seeking to step into the shoes of the CPS must be prepared to meet their high standards in relation to evidence, disclosure and conduct.
1 Section 6 of the Prosecution of Offences Act 1985
2 Gouriet v AG  AC 435
3 Section 17 of the Prosecution of Offences Act 1985
4 Kay & Anor, R (on the application of) v Leeds Magistrates' Court & Anor  EWHC 1233 (Admin)
5 Holloway v Harrow Crown Court & Others  EWHC 1731 (Admin)
6 Section 19 of the Prosecution of Offences Act 1985