Most criminal cases in the UK are handled by the police and the Crown Prosecution Service (CPS). However, individuals and organisations also have the right to bring a private prosecution—a legal process where someone outside the state initiates criminal proceedings. This option can be useful when public authorities choose not to take action, but it comes with challenges and legal considerations.

What Is a Private Prosecution?

A private prosecution allows a person or group to bring criminal charges against someone without relying on the CPS. This right has deep roots in common law and is still recognised under modern legislation. While public prosecutions focus on the wider public interest, private prosecutions can help individuals seek justice in cases where official authorities decide not to intervene.

Legal Framework for Private Prosecutions

Several laws and principles govern private prosecutions in the UK:

• Common Law– The right to bring a private prosecution has long existed under common law, allowing individuals to take legal action against those who commit crimes.
• Prosecution of Offences Act 1985– Section 6 of this Act confirms the right to bring a private prosecution but also gives the CPS the power to take over and either continue or stop the case.
• Criminal Procedure Rules– These rules specify how all criminal cases, including private prosecutions, should be conducted.
• Human Rights Act 1998– Articles 6 and 8, which protect the right to a fair trial and privacy, can play a role in private prosecutions, especially if concerns arise about the fairness of the process.

Key Considerations When Bringing a Private Prosecution

Although private prosecutions can provide a path to justice, they come with important factors to consider:

The CPS Can Intervene

At any stage, the CPS has the authority to take over a private prosecution. It can stop the proceedings if it believes the case lacks sufficient evidence or is not in the public interest. This safeguard prevents cases that could be seen as unfair or unnecessary.

The Public Interest Test

Courts consider whether a private prosecution serves the public interest. Serious offenses with strong evidence are more likely to proceed, while cases driven by personal grievances may be dismissed.

Proving the Case

Private prosecutors must meet the same legal standards as public prosecutors. This means proving the case beyond a reasonable doubt, which requires strong and reliable evidence. Unlike the police, private prosecutors do not have state-backed investigative powers, making evidence collection more difficult.

Financial Costs

Running a private prosecution can be expensive. Legal fees, investigation costs, and court expenses fall on the person bringing the case. In some situations, costs may be recovered if the prosecution is successful, but there is no guarantee.

Risk of Abuse of Process

Courts carefully examine private prosecutions to ensure they are not misused. Cases brought for personal revenge, harassment, or financial gain can be stopped as an abuse of process. The legal system must ensure that prosecutions serve justice rather than personal interests.

Examples of Private Prosecutions

Private prosecutions have been used in various cases, including:

• Fraud and financial crimes– When authorities do not pursue alleged financial wrongdoing, businesses or individuals may take legal action themselves.
• Environmental offenses– Campaigners and organisations have used private prosecutions against companies accused of pollution.
• Intellectual property infringement– Businesses sometimes prosecute individuals or companies that violate trademarks or copyrights.
• Serious assault or harassment– When victims feel law enforcement has not taken action, they may bring a private prosecution for violent or threatening behaviour.

Final Thoughts

Private prosecutions provide a way for individuals and organisations to seek justice when state bodies choose not to act. However, they require careful preparation, strong evidence, and significant financial resources. Given the complexities involved, legal advice is essential before pursuing this route. When used responsibly, private prosecutions can play a key role in ensuring accountability within the legal system.

Private prosecution is a legal process where individuals or organizations initiate criminal proceedings without relying on public authorities, such as the police or the Crown Prosecution Service (CPS). This right, protected under Section 6(1) of the Prosecution of Offences Act 1985, allows anyone to seek justice when public bodies decide not to act on a reported offence.

Unlike cases handled by state prosecutors, private prosecutions are pursued independently. They can address various crimes, from fraud and theft to more serious offences, provided there is enough evidence to support the case.

Who Can Bring a Private Prosecution?

Any adult or organisation in the UK has the right to bring a private prosecution, provided the alleged offence falls within the jurisdiction of the criminal courts in England and Wales. The decision to pursue such action often arises when public authorities decline to prosecute due to limited resources or other priorities.

For instance, private prosecutions are frequently employed in cases involving fraud, intellectual property theft, or workplace misconduct.

While this route is open to all, some offences require the consent of the Attorney General or another authority. The relevant Act of Parliament for the alleged offence will specify such conditions. Understanding these legal nuances is crucial for anyone considering this option.

Key Steps in Bringing a Private Prosecution

Private prosecution allows individuals or organizations to initiate legal proceedings against an accused person when public authorities, such as the Crown Prosecution Service (CPS), decide not to act. However, the process requires careful adherence to legal procedures to ensure it moves forward effectively.

1. Filing an Application for a Summons or Warrant

The process starts by submitting an application to the magistrates’ court. This application must clearly outline the alleged offence and include all relevant evidence supporting the claim. The evidence should establish a prima facie case—meaning there is sufficient information to suggest the offence has been committed and the defendant is likely responsible.

This application is reviewed by a legal authority, which could be a magistrate, a judge, or a legal adviser within the court. They assess the submission to determine whether it meets the necessary legal thresholds to justify initiating prosecution.

2. Approval of the Application

If the application satisfies the court’s criteria:

• Issuance of a Summons or Warrant:The court issues a summons, formally notifying the defendant of the charges against them. The summons also specifies the date and location of the hearing.
• Initial Hearing in Magistrates’ Court:The case generally begins in the magistrates’ court, determining preliminary matters, such as whether the case falls under its jurisdiction. For more serious offences (indictable offences), the case may be transferred to the Crown Court for trial.

3. Rejection of the Application

If the court refuses the application, they provide a written explanation detailing the reasons for their decision. This refusal could result from insufficient evidence, procedural errors, or the court’s determination that pursuing the case is not in the public interest.

In such instances, the prosecutor can challenge the decision by applying for a judicial review in the High Court. This step involves thoroughly examining the magistrates’ court’s decision-making process rather than the merits of the case itself. Judicial reviews are complex and demand robust legal arguments, as the High Court typically defers to the original decision unless clear errors in law or procedure are demonstrated.

Legal Responsibilities of Private Prosecutors

A private prosecutor is subject to the same legal obligations as public prosecutors. This includes adherence to the Criminal Procedure Rules 2020, the law of evidence, and the disclosure requirements under the Criminal Procedure and Investigations Act 1996. For example, all evidence that could weaken the prosecution’s case or assist the defence must be disclosed to ensure a fair trial. Failure to meet these standards can lead to the dismissal of the case.

Costs and Financial Considerations

Pursuing a private prosecution involves financial risks. Legal representation is essential, and the costs can be substantial. While successful prosecutors can apply to recover some of these costs from central government funds, this is not guaranteed.

In rare cases, the courts can order prosecutors to pay the defendant’s legal costs, especially if the prosecution is deemed malicious or unjustified.

Role of the Crown Prosecution Service

The CPS retains the authority to intervene in private prosecutions at any stage. It can take over and continue the case or decide to discontinue it. The CPS may step in if it believes the prosecution lacks sufficient evidence or is not in the public interest. This intervention ensures that private prosecutions adhere to the same legal and ethical standards as public ones.

Benefits of Private Prosecution

While the process can be challenging, private prosecutions offer several advantages:

• Control over Proceedings:Individuals can influence the pace and direction of the case.
• Focus on Justice:Private prosecutions often prioritise cases that public authorities may overlook due to resource constraints.
• Deterrence:A successful prosecution can send a strong message, discouraging similar offences.

Challenges and Risks

Despite its benefits, private prosecution is not without risks. Apart from the financial implications, prosecutors must guard against malicious prosecution claims. Such claims arise if the defendant argues that the case was initiated out of malice or that the evidence was fabricated. Ensuring transparency and fairness throughout the process is critical to avoiding these allegations.

Additionally, jurisdictional limitations may apply. Most crimes prosecuted in England and Wales must have been committed within these territories. Exceptions include offences like fraud or manslaughter of a British national, where specific conditions extend the jurisdiction.

When to Seek Legal Advice

Given the complexity of private prosecutions, obtaining professional legal advice is strongly recommended. Solicitors with experience in this area can guide individuals through the process, ensuring compliance with all legal requirements. Legal expertise is especially valuable in preparing the initial application, gathering evidence, and responding to challenges.

Final Thoughts

Private prosecution is a vital mechanism for those seeking justice when public authorities are unable or unwilling to act. While the process demands careful navigation of legal and procedural hurdles, its potential to achieve fair outcomes makes it an important tool in the UK’s legal system. Anyone considering this option should seek expert advice to thoroughly understand their rights, responsibilities, and potential outcomes.