Private Prosecution Guide

Any 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.

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.”

Section 6 Prosecution of Offences Act 1985

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.

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
• Blackmail
• Manslaughter/murder: the Stephen Lawrence case is an example of this.

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.

The CPS advise that a private prosecution should be stopped if after reviewing the case papers either the evidential sufficiency or the public interest stage of the Full Code test is not met. Examples of when the CPS will stop a private prosecution include:

• the prosecution interferes with the investigation or prosecution of another criminal offence or charge;
• the prosecution is vexatious (within the meaning of section 42 Supreme Court Act 1981, as amended by section 24 Prosecution of Offences Act 1985);
• the prosecution is malicious (the DPP is satisfied that the prosecution is being undertaken on malicious grounds);
• the prosecuting authorities (the police, the CPS or any other public prosecutor) have promised the defendant immunity from prosecution (Turner v DPP (1979) 68 Cr App R 70). This does not include cases where the prosecuting authorities have merely informed the defendant that they will not be bringing or continuing proceedings;
• the defendant has already been given either a simple caution or a conditional caution for the offence (which remains in being).

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.

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.

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 [2014] 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 [2014] 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.

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.