Private Prosecution FAQs

Any individual or company can bring a private prosecution. It is a misconception that only the police, CPS or government agency (such as Trading Standards or 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.

Offences which are the subject of a private prosecution are typically summary offences brought by organisations, for example prosecutions for copyright offences have been brought by the Federation Against Copyright Theft (FACT) and animal welfare violations brought by the RSPCA.

Private individuals also have the power to bring a prosecution and punish offenders when public prosecutors such as the CPS do not institute criminal proceedings. Offences include:

• 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).