What is a private prosecution?
Private prosecutions are prosecutions for a criminal offence initiated by a private citizen or entity which is not acting on behalf of the police or any prosecuting authority. A private prosecution is essentially the same as a standard criminal trial but one which is not brought by the Crown Prosecution Service (CPS).
Who can bring a private prosecution?
ny individual or company can bring a private prosecution. It is a misconception that only the police, CPS or government agency (such as the Director of the Serious Fraud Office) can bring a prosecution.
Traditionally, private prosecution actions were almost solely used by charitable or public interest bodies such as the RSPCA. Commercial organisations regularly undertake private prosecutions. This is undertaken by trade organisations such as FACT (Federation against Copyright Theft) and BPI (British Recorded Music Industry) but also ordinary commercial companies. Recently, section 6(1) has been increasingly used by individuals and commercial entities as an alternative to or alongside civil litigation.
Where is the legal right to bring a private prosecution?
The right to bring a private prosecution is enshrined in statute section 6(1) POA 1985:
“6 Prosecutions instituted and conducted otherwise than by the Service.
(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.
(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”
What are the limitations to the legal right?
Pursuant to section 6(1) POA 1985, “any person” has the right to bring a private prosecution. However, this right is subject to three limitations:
- All magistrates can exercise judicial discretion to refuse to issue the requisite warrant or summons;
- The DPP have the right under section 6(2) POA 1985 to take over or stop a private prosecution at any stage (see below); and
- The right to prosecute certain offences is restricted by legislation or policy.
What offences can be privately prosecuted?
Subject to certain exceptions, private prosecutions can be brought for a wide range of offences where the CPS have not initiated criminal proceedings, including:
- Fraud: in circumstances where the CPS or SFO have made a decision not to prosecute. Private prosecutions have been brought for counterfeiting; protect commercial rights; contractual fraud; false representation; professional who have abused their position through money laundering, dishonesty and/or theft; insurance fraud; fraud internal within a company.
- Property disputes: false adverse possession claims
- Assault: sexual assault; domestic violence; racially aggravated assault and violent assaults falling under section 39 Criminal Justice Act 1988 or s.47 Offences Against the Person Act
- Sexual offences: victims of date rape and non-consensual sexual offences.
- Harassment: victims accusing another of stalking
- Perverting the course of justice
- Manslaughter/murder: the Stephen Lawrence case is an example of this.
Can the DPP take over a private prosecution?
Yes. The Director of Public Prosecutions (DPP) is head of the Crown Prosecution Service (CPS). The DPP has the power, under section 6(2) POA 1985, to take over private prosecutions proceedings. There have been instances where the DPP exercises the power under section 6(2) POA 1985 to either continue or discontinue prosecutions.
The CPS advise that they will take over and continue a prosecution if the case papers show:
- the evidential sufficiency stage of the Full Code Test is met; and
- the public interest stage of the Full Code Test is met; and
- there is a particular need for the CPS to take over the prosecution.
Should I commence a private prosecution?
Why commence a private prosecution?
To get justice for criminal offences committed against them that have not been taken on by the police or CPS. The media have reported that private prosecutions are on the increase due to police and CPS budget cuts which has limited the ability of the enforcement agencies to investigate and prosecute crime effectively. These cuts have created a trend amongst individuals to fund their own criminal actions due to a failure of the police to investigate or the CPS’s unwillingness to press ahead to trial.
If a certain offence is not the priority of the CPS, then private prosecutions are a necessary tool allowing a victim to take control of proceedings and actively pursue a conviction against the accused.
Some individuals feel that civil proceedings may be prohibitively slow and a private prosecution would offer a speedier resolution. In addition, the civil damages awarded may not adequately compensate for the harm suffered whereas private prosecutions have the availability of tougher penalties which includes unlimited fines and imprisonment.
Many corporate entities have launched private prosecutions to protect their intellectual property, rather than leave their rights to be protected by public law enforcement agencies.
Victims of crimes consider starting a private prosecution for a number of reasons, for example:
- to deter future criminal conduct by the suspect;
- to send a clear message to potential fraudsters that a company that has been defrauded will take strong action;
- as a necessary tool when the public prosecution authorities are unwilling to act;
- potential compensation for the victim.
- to establish a precedent for future conduct;
- to protect society; and
- a private prosecutor can access specialist expertise which many public prosecuting authorities cannot utilise, which can increase the chances of prosecution.
Why consider private prosecution instead of civil litigation?
Private prosecution has the advantage of being the more economic route to seek financial redress and justice. Private prosecution is usually cheaper and faster than commencing civil proceedings.
Can you bring a private prosecution alongside civil litigation?
Yes. Private prosecutions brought in conjunction with civil proceedings can be a useful tool for Claimants. A criminal conviction can be relied upon in related civil litigation, which increases the chances of success in civil proceedings. A private prosecution can be useful in the disclosure stage of civil litigation as it could lead to the earlier disclosure of important documents.
Private prosecutions are a valuable tool which can be used to pressure an opponent to settle on-going civil proceedings. However, although parallel civil litigation is not a bar to a successful private prosecution, caution must be exercised. Criminal proceedings could be stayed as an abuse of process if the Court is under the impression that the private prosecution is solely deployed as leverage to reach a settlement in civil proceedings.
However, although there are advantages to bringing a private prosecution in conjunction with civil litigation, this right is not unlimited. In R (Virgin Media Ltd) v Zinga the Lord Chief Justice of England and Wales indicated that as a deterrent to improper private prosecutions, a Court may take steps to limit the costs recoverable by a private prosecutor from state funds. Moreover, there can be delays in securing a hearing date and unlike in civil proceedings, a Court cannot award costs against a defendant for deliberate delay.
What are the advantages of private prosecutions?
A private prosecution has advantages over a public prosecution:
- Individuals can bring a prosecution where the prosecuting authorities are unwilling. For example, where the CPS have a lack of resources or specialist expertise (e.g. a lack of specialist fraud officers). This point was noted by Lord Thomas CJ in R v Zinga  EWCA Crim 52:
“At a time when the retrenchment of the state is evident in many areas, including the funding of the Crown Prosecution Service and the Serious Fraud Office, it seems inevitable that the number of private prosecutions will increase.”
R v Zinga  EWCA Crim 52 (Lord Thomas CJ)
- A person can exercise greater control over the investigative procedure and subsequent prosecution. For instance, more resources or highly specialist investigators and lawyers can be employed which are not ordinarily provided for in a public prosecution. The private prosecutor can control the investigation rather than rely on the CPS or police.
- They offer a way to overcome issues that have precluded a person from making a civil claim. There are no limitation periods in criminal proceedings, unlike for civil proceedings. In addition, it may be easier to establish jurisdiction in the UK for a criminal matter instead of a civil case.
- Criminal trials can generally be brought faster court than civil proceedings as there are not as many pre-trial hearings.
- Criminal proceedings can be cheaper than the civil route alternative.
- Unlike with civil proceedings, a private prosecutor does not have to provide a security for costs to the defendant. If your case fails and the defendant is not prosecuted, you will generally not have to pay the successful party’s costs.
- Under s.18 Prosecution of Offences Act 1985, you can apply to the court to award costs against the defendant which have been incurred in the whole proceedings.
- In certain cases, a private prosecutor can apply for legal costs and the costs of an investigation from state funds
- A private prosecutor can apply for a Restraint Order, which freezes the defendants’ pre-charge assets.
- If a defendant is found to be guilty, a private prosecutor can apply for a Compensation Order under sections 130-133 Powers of Criminal Courts (Sentencing) Act 2000 or a Confiscation Order. Both a Compensation Order and a Confiscation Order can be enforced by a Court. If the defendant refuses to pay, then these Orders can be enforced which may ensure that the defendant gets sent to prison.
- Private prosecutions are a useful tool against economic crimes that have not been prioritised by the police or CPS.
- They act as a robust deterrent due to the sanctions that a Criminal Court can impose: criminal record, custodial sentence, Confiscation Order and can affect an individual’s right to be a director of a company.
Private Prosecution Case Studies
Stephen Lawrence: Murder
Stephen Lawrence’s parents, Doreen and Neville Lawrence launched a private prosecution against Gary Dobson, Luke Knight and Neil Acourt in September 1994 after three years of inadequate police investigations.
In April 1996, following the private prosecution prosecution procedure, the murder trial commenced at the Old Bailey. However, the case collapsed due to the absence of any firm and sustainable evidence.
96 football fans were crushed to death and a further 766 injured in the Hillsborough disaster in April 1989. Following the tragedy, evidence came to light that the deaths resulted from grossly reckless actions by senior police officers.
The CPS declined to file involuntary manslaughter charges due to insufficient evidence. The victims families therefore took control of the proceedings to get justice by bringing a private prosecution against 2 senior police officers: David Duckenfield and Bernard Murray who had given the order to open a gate to allow 100s more fans to enter the standing terraces which exacerbated the crush.
A judge approved the private prosecution moving forward to a jury trial in July 2000. Although Bernard Murray was acquitted and the jury unable to reach a verdict on David Duckenfield, the trial placed the Hillborough disaster firmly in public eye and represented the first time the case had been articulated in full. The families of the victims got their day in court.
Hillsborough campaigners finally got justice in April 2016 when jurors concluded that fans were not to blame for the dangerous situation and the police contributed to loss of lives by error or omission.
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