UK Private Prosecution Lawyers, City of London EC4 | ✉ contact@privateprosecutionservice.co.uk | ☎ 02071830529

The Private Prosecution Step-by-Step Guide

Step 1: Have you been the victim of a crime or a victim of fraud?

It is important that once you have become aware that you have been a victim of a crime or a victim of fraud, that you keep hold of all the evidence and documents that are relevant to any potential case. This includes all correspondence, including electronic messages.

Step 2: Assess whether a private prosecution is the right course of action: criminal, civil or both?

a) Choose criminal proceedings: Make a report to the police. If you are a victim of fraud, then it is advisable to make a report to ActionFraud, which is the UK’s national fraud and cyber crime reporting centre (Tel: 0300 123 2040). A victim can expect to receive an update within 28 days notifying you whether your report has been passed to the police or CPS for consideration on whether to investigate or not. If a serious crime has been or is being committed, then a report should be made to the police immediately. A police crime reference number will be provided to you.

Bring a private prosecution: this is an alternative to state prosecution brought by an individual or company instead of the CPS or police. See FAQs and the advantages of a private prosecution here.

b) Choose civil proceedings: it is recommended that you instruct the Private Prosecution Service who can either litigate the issue on your behalf or negotiate an alternative dispute resolution out of court.

c) Pursue parallel civil and criminal proceedings: See our section on “Should I commence a Private Prosecution”. Are there parallel civil law proceedings? Private prosecutors must be wary of a court finding that a private prosecution has been utilised solely as a bargaining tool to reach a settlement in parallel civil proceedings. Although parallel civil action is permitted, a private prosecutor must be careful to ensure criminal proceedings are not stayed as an abuse of process.

Step 3: Instruct the Private Prosecution Service

If you have decided to bring a private prosecution instead of a state prosecution alongside or instead of civil proceedings, then it is highly advisable to instruct the Private Prosecution Service to manage your case.

In a private prosecution, the Private Prosecution Service assume the role of a state prosecutor in preparing a case for trial. The Private Prosecution Service is unique as we comprise both solicitors to prepare your case and barristers to advise and represent you in court. Unlike for civil litigation, you cannot be a litigant in person. The law requires a separation between a victim and a prosecutor.

Step 4: Assess whether a private prosecution can be funded

Can you fund the private prosecution proceedings? Unlike for civil proceedings, conditional fee agreements (CFAs) are illegal in criminal proceedings. Also, although a costs for successful private prosecutor are recoverable to some extent, the costs regime is different to that one will expect in the civil regime.

 

Step 5: Preliminary Assessment and evidence gathering

It must be first ascertained whether a criminal offence has been committed. The Private Prosecution Service will gather all the evidence required to ascertain the extent of the offence.

We will be thorough in gathering all the evidence which includes witness interviews, further investigation and ascertaining our clients’ instructions. It would be remiss to suggest that the evidence gathering is easier for a private prosecutor than a state prosecutor because the latter have more investigative powers. The Private Prosecution Service will lead the investigative process by:

  • Instructing an investigation team in large cases or leading the investigation is-house for smaller cases to gather a body of evidence in interviewing potential witnesses, taking detailed witness statements, gathering all documentary evidence and following all the leads. At this stage, after gathering evidence, clients can pass this information to the police who may proceed to a state prosecution.
  • Instructing forensic experts to offer expert investigative skills for example IT specialist to recover electronic data or specialist accounts to examine financial information (both these forensic experts are useful when investigating a fraud offence)
  • Utilising our team of Barristers to advise on the sufficiency of evidence and to develop a strategy going forward.

It is important to note that the CPS Code obliges a prosecutor to follow all lines of inquiry that are considered reasonable. An investigation must be impartial at all times to avoid a prosecution failing due to an abuse of process arguments (see below).

Step 6: Make a decision to charge using the Full Code test

What is the role of a Prosecutor in a private prosecution?

The role of a prosecutor, whether a public authority or private individual, is to ensure that a just verdict is reached. A private prosecutor is under no duty to consider the full code test in the CPS Code (R (Charlson) v Guildford Magistrates’ Court [2006] EWHC 2318). Nevertheless, to ensure their actions are not to be doubted, it is advisable that public prosecutors adhere to the CPS Code for Crown Prosecutors.

What is the CPS Code for Crown prosecutors?

The Code for Crown Prosecutors is a document which is issued by the DPP setting out the common rules that Crown Prosecutors should adhere to. In essence, the CPS Code’s aim is to ensure Crown Prosecutors are satisfied that there is enough evidence to garner a “realistic prospect of conviction” against a defendant.

What does the CPS Code require of a prosecutor?

Although a private prosecutor is not required to follow the CPS Code, it provides a useful guide on the steps a private prosecutor should consider before a private prosecution is brought.

It is also important to understand the Full Code Test because if the evidential sufficiency stage or the public interest stage of the test are not met, then the CPS have the power to take over an investigation and stop it.

Follow the full code test:

To ensure a private prosecutor’s conduct in pursuing a charge does not lead to an abuse of process defence, then it is good practice to ensure a prosecution meets the two limbs of the Full Code test.

Evidential stage

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the defendant.

The realistic prospect of conviction is an objective test, based on the prosecutor’s objective assessment of the evidence. The test is whether a reasonable magistrate, judge or jury is more likely than not to convict the defendant of the alleged charge.

a) The potential defence of the case must be considered and how likely this defence may affect the chances of a conviction.

b) a prosecutor should consider whether the evidence is reliable, credible and whether it can be admissible in court.

A case which does not pass the evidential stage cannot proceed to trial.

Public interest stage

Where there is enough evidence, a prosecutor must then consider whether a prosecution is required in the public interest.

A prosecution should take place once the evidential stage is met unless the prosecutor believes that there are public interest reasons weighing against prosecution.

Prosecutors should consider the following questions:

a) the seriousness of the offence committed. The more serious an offence is, the more likely that a prosecution is necessary;

b) the level of culpability of the suspect. The higher the culpability level of a suspect, the more likely that a prosecution is necessary. Culpability can be difficult question to ascertain in the early stages of an investigation;

c) the circumstances and the harm caused to the victim;

d) whether the suspect was under the age of 18 at the time of the offence;

e) what the impact of the offence on the community is;

f) whether prosecution is a proportionate response; and

g) whether sources of information require protecting.

After following these steps, if there is insufficient evidence for a “realistic prospect of conviction”, then the prosecution should not proceed. This can be contrasted with a civil case where a client can bring a case even where the prospects of success are below 50%.

Although there is no requirement for a private prosecutor to follow the full Code test as laying an information can be done without this requirement, it is only appropriate to not follow the test where there was a real urgency.

Step 7: Laying an Information

A prosecution commences by laying an information at a magistrates court followed by the issue of a warrant, pursuant to Rule 7.2 of the Criminal Procedure Rules (Crim.PR).

There is no limit for laying an information for an indictable offence but information for a summary offence (a minor offence in the magistrates court) is subject to a six month time.

The Court will then consider whether a summon or warrant should be issued. If it is issued then you become the prosecutor and the accused becomes the defendant.

Pursuant to Rule 7.2(2) Crim.PR, information must be laid in writing before a magistrate or their clerk in a simple and clear way. There is no standard form – the only important requirement is that the document should contain all elements essential to the offence including:

a) A statement of the offence in ordinary language (Rule 7.3(1)(a)(i) Crim.PR).

b) The legislation governing that offence (for example section 1 Fraud Act 2006 for fraud by false representation) (Rule 7.3 (1)(a)(ii) Crim.PR).

c) The particulars of the private prosecutor’s case. Along with the written record of the allegation, it is useful to also provide evidence available to support the prosecution.

Step 8: Magistrate considers whether to grant process

A magistrate of their clerk will consider the information and decide whether to “grant process”, which essentially means to proceed with the case.

There is no requirement for the potential defendant to attend the laying of information. This stage can be disposed of without giving either party the opportunity to make representations.

A magistrate or clerk will issue a warrant if an information has been correctly laid, unless compelling reasons exist not to (R v West London Metropolitan Stipendiary magistrate, ex p Klahn [1979] 1 WLR 933)

A magistrate or clerk will issue a warrant, where:

a) an offence has basis in statute or common law;

b) the charge is made within the time limit- some criminal offences have a time limit setting out the latest time the information must be laid (often six months from the date of the offence’s commission); and

c) the court has jurisdiction- a court must be satisfied that section 30 Courts Act 2003 is followed whereby an application should be made local to the court where:

  • the offence took place; or
  • the defendant lives; or
  • a witness lives; or
  • similar issues are being heard; and
  • the prosecution has the relevant authority to prosecute- it is important to seek legal advice at the outset as certain offences need the consent of the DPP or Attorney General to institute a prosecution; and
  • the allegation is neither considered “vexatious”, nor “malicious” nor where previous applications have been made; and
  • the allegations are sufficiently serious; and
  • the likely sentence if there is a guilty conviction; and
  • the likely cost to the parties; and
  • the likely cost to the public.

Step 9: Magistrate issues summons or warrant

Section 1 Magistrates’ Courts Act 1980 provides that a magistrate can either issue a warrant or summons:

“On an information being laiud before a justice opf the peace that a person has, or is suspected of having, committed an offence, the justice may issue-

a) a summons directed to that person requiring him to appear before a magistrates’ court to answer the information, or

b) a warrant to arrest that person and bring him before a magistrates’ court”

A warrant will not be initially issued for a minor offence and will not be issued where a summons can be effective.

The requirements for a summons are contained in Rule 7.4 Crim.PR and must contain: notice of when the defendant is required to attend the court and provide specification on each offence.

The requirements for a warrant are contained in Part 18 Crim.PR and must contain: the name and description of the defendant to be arrested; details of the alleged offence and require the police (to whom an arrest warrant is ordinarily addressed) to arrest the named defendant.

Following the issuance of a warrant or summons, the two risks to a successful prosecution are a DPP review and a successful abuse of process argument.

Step 10: The DPP can either take over or stop an investigation

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 fhover 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.

Examples of when the CPS will stop a private prosecution include:

  • the prosecution interfereswith the investigation or prosecution of another criminal offence or charge;
  • the prosecution isvexatious (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).

Step 11: The success of a private prosecution can be affected by an abuse of process argument

A defendant to a private prosecution has the right to challenge the bringing of a private prosecution as soon as the summons is received.

Under section 6(2) of the Prosecution of Offences Act 1985, the defendant can request the DPP to take over the investigation:

  • Improper motive: It was held in Re Serif Systems Ltd [1997] CLY 1373 that the test on whether a private prosecution can be halted is to ask whether the primary motive is so unrelated that it renders the proceedings an abuse of process. The courts have accepted prosecutions being brought for “mixed motives”. In addition, for this argument to succeed, the private prosecutor’s conduct must be “truly oppressive” before the court halts a prosection according to R v Bow Street Metropolitan Stipendiary Magistrates, ex p South Coast Shipping Co Ltd [1993] QB 645.
  • Proceedings brought regarding the same facts as a previous proceedings: An abuse of process argument can be brought here and in R v Moxon-Tritsch [1988] Crim LR 46 it was held that a private prosecution is barred if the suspect has been previously prosecuted in a similar case.
  • Failing to disclose evidence: it is important to instruct the Private Prosecution Service to review all the evidence and ensure that failure to disclose evidence does not halt a private prosecution.

Step 12: Pre-trial Hearings

The defendant will be given an opportunity to plead guilty or not guilty. If they plead the former, then the private prosecution process moves directly to sentencing.

If they plead not guilty, then a preliminary hearing will may take place if certain conditions are established (if the issues are complicated or a trial is likely to be lengthy).

Following a preliminary hearing, the judge will provide directions at a Plea and Case Management Hearing.

Step 13: The Trial

At the trial, you will be offered the chance to elaborate and be questioned on your witness statement.

As a witness, it is likely that you will be questioned by the prosecution and cross-examined by the defence.

The Private Prosecution Service have our own set of experienced and skilled prosecutors to represent you and cross-examine the defendant at trial.

Step 14: Sentencing- guilty, not guilty or hung jury?

Not guilty: if the defendant is found not guilty, this is not necessarily the end of the matter. Following an acquittal, there remains the possibility of commencing civil litigation. In addition, an order for costs may be made to claim the costs of the process if the prosecution was commenced in good faith.

Hung jury: this is where a jury are unable to agree on whether the defendant is guilty or not guilty. In these circumstances, the Private Prosecution Service can seek a retrial on your behalf. In addition, an order for costs may be made to claim the costs of the process if the prosecution was commenced in good faith.

Guilty: if the Defendant is found guilty, you can have a part to play in the sentencing process through the completion of a Victims Personal Statement whereby you demonstrate in what ways the crime against you has had a psychological, emotional or financial effect on you as a victim. A court will bear this statement in mind when considering the sanctions to impose on the defendant.

Step 15: Potential sanctions

Confiscation order

A Court is entitled to make a confiscation order after a conviction to deprive the defendant of a benefit they have unlawfully garnered from the offence committed.

The court’s statutory right to make a confiscation order is found in Part VI of the Criminal Justice Act 1988 as amended by the Powers of Criminal Courts Act 1995 (CJA 1995).

The Private Prosecution Service can take steps if instructed to request a Court preserve assets so they are available to pay the confiscation order.

Compensation order

A Court must consider making a compensation order where the offence has caused personal injury, loss or damage to the victim. There is no statutory limit to the amount of compensation that can be awarded.

When considering compensation, a Court will consider two types of loss: financial loss (repairing damage, loss of earnings, medical bills) and other loss (shock, distress, pain, suffering).

Custodial sentence

Custodial sentences are reserved for offences that are “so serious that neither a fine alone nor a community sentence can be justified” (section 152(2) of the Criminal Justice Act 2003)

The length of any imprisonment is dependant on the seriousness of the offence, the behaviour of the defendant and the maximum statutory penalty for that offence.

The imposition of a custodial sentence does not- in of itself- make a compensation order inappropriate.

Step 16: Costs

A successful private prosecutor can be entitled to recover costs from either the state or from the defendant.

Costs from the state

-Pursuant to section 17 POA 1985, costs for a Crown Court trial can be recovered regardless of whether the defendant is convicted. Reasonable expenses properly incurred by a prosecutor can be recoverable. However, if the CPS take control of an investigation, expenses can only be claimed for before the CPS started to handle the case.

– the Court in R (Virgin Media Ltd) v Zinga [2014] 1 Cr App R2 helpfully articulated the correct approach to awarding state costs.

Costs from the defendant:

-Pursuant to section 18 POA 1985, the court can order a convicted defendant to pay costs to a private prosecutor’s costs. Costs will only be considered by a Court after an order has been made on compensation or confiscation.

Under the Costs in Criminal Proceedings Practice Direction (CrimPD Costs), the Private Prosecution Service can serve on the defence a full costs breakdown. However, the defence is also entitled under section 19 POA 1985 to seek to recover costs if they have incurred costs due to an improper act or omission (R v City of Westminster Magistrates’ Court [2017] EWHC 232 (Admin)).