Private prosecutions: What they are, how they work, and why they matter

Private prosecutions are a little-known but powerful legal tool. They allow individuals or organisations to bring criminal proceedings independent of police and prosecuting authorities such as the Crown Prosecution Service ("CPS"), or Serious Fraud Office ("SFO"). While relatively rare, private prosecutions are increasingly being brought, particularly where public authorities choose not to act.

At Devonshires, we can both prosecute and defend private prosecutions. In this article, we take a brief look at the fundamentals of private prosecutions, how they differ from cases brought by the CPS or SFO, and why they can be a crucial tool to bring about justice in certain circumstances.

What is a private prosecution?

A private prosecution is a criminal case initiated by a private individual or organisation, rather than by the state. The case is brought before a Magistrates’ Court and may progress to the Crown Court if appropriate. 

Despite the existence of the CPS and other prosecuting authorities, the right to bring a private prosecution is preserved under section 6(1) of the Prosecution of Offences Act 1985, which states: "Nothing in this Part shall preclude any person from instituting any criminal proceedings."

Crucially, private prosecutions must comply with the same legal and procedural rules as any other criminal prosecution, including the duty of candour (i.e. full disclosure and transparency of all relevant matters before the Court). Private prosecutors are responsible for gathering evidence, preparing the case, and complying with disclosure obligations under the Criminal Procedure and Investigations Act 1996. 

They also bear the cost of the investigation and prosecution, initially, although a private prosecutor can recover from central funds the costs incurred in the prosecution under s.17 of the Prosecution of Offences Act 1985. This is regardless as to whether the defendant is convicted. The exception to that is, broadly, if the prosecution was not properly brought. The amount awarded is assessed at the conclusion of the case, although it is possible in some circumstances to apply for an interim costs order.

It is possible to have parallel or consecutive civil and criminal proceedings. If that is the case however it requires careful management. There is no legal obligation for a private prosecutor to consider or commence a civil case prior to considering whether the defendant ought to be prosecuted in the criminal courts.

How does a private prosecution differ to an ordinary prosecution?

Key differences include:

1. Initiation:
   CPS and SFO prosecutions follow investigations by police or specialist teams. A private prosecution can be brought by anyone, regardless of whether the police have investigated.
2. Control:
   In a public prosecution, the case is managed by Government prosecutors. In a private prosecution, the complainant (or their legal team) manages all aspects - from investigation to trial.
3. Resources:
   Public bodies are taxpayer funded. Private prosecutions are usually funded by the complainant, although costs recovery options do exist.
4. Discretion:
   The CPS follows the Full Code Test under the Code for Crown Prosecutors when deciding to prosecute: (1) Is there sufficient evidence for a realistic prospect of conviction? (2) Is it in the public interest. A private prosecutor has to meet that same test, however they may have “mixed” motives, e.g. obtaining a financial restitution and justice. What is not permissible is an “improper” primary “oblique” motive which on the authorities is a primary motive so unrelated to the criminal proceedings that it tends to misuse or be an abuse of process.

Why bring a private prosecution?

There are several legitimate reasons for bringing a private prosecution:

1. State inactivity:
   Sometimes the police or CPS decline to investigate or prosecute, often due to resource constraints or competing priorities. Victims may feel justice has not been done.
2. Speed:
   Private prosecutions can move faster than state prosecutions, particularly in complex fraud or cybercrime cases that public bodies may deprioritise.
3. Control and strategy:
   Victims may want greater control over the process - particularly in cases involving reputational damage, business fraud, or where civil remedies are also being pursued.
4. Deterrence:
   In sectors prone to fraud or misconduct (e.g. finance, construction, or public procurement), a well-targeted private prosecution can deter future wrongdoing.

However, private prosecutions must not be used for improper motives such as securing a commercial advantage or applying pressure in civil disputes. Courts will scrutinise motive and fairness.

What powers do the CPS have over private prosecutions?

The CPS has significant powers in relation to private prosecutions including the right to take over the prosecution under section 6(2) of the Prosecution of Offences Act 1985.

The CPS may be asked (by the Court or the Defence) to review a private prosecution.  It can then either continue the prosecution, or discontinue it if it fails the Full Code Test. Any such decision, made improperly, could be susceptible to judicial review.

If the prosecution is not in the public interest (e.g. it is vexatious or risks undermining confidence in the justice system), or it is being conducted improperly or as an abuse, the CPS will likely discontinue it. If the CPS intervenes, a poorly prepared case, or one that is being mishandled, may be quickly halted.

Conversely, it is possible for a private prosecutor to ask the CPS to take over a case, but that is reserved for unusual circumstances where the private prosecutor does not have the power to carry out various things - for example, where it would be necessary to carry out enquiries in foreign jurisdictions or to extradite a defendant from abroad.

In general terms once a case is up and running it is unlikely that the CPS will take it over.

Some well-known private prosecutions

Although relatively rare, private prosecutions have been used in high-profile and influential cases. By way of just a few examples:

1. R (on the application of the Federation Against Copyright Theft) v James and Others (2009):
   “FACT”, a private body, prosecuted individuals for illegally distributing copyrighted films online. The case led to convictions and custodial sentences.
2. R (on the application of Virgin Media Ltd) v Zinga (2014):
   Virgin Media brought a private prosecution against a former employee for fraud and computer misuse.
3. Post Office Horizon IT Scandal:
   Most controversially, the Post Office itself used private prosecutions against sub-postmasters, over 700 of whom were prosecuted between 2000 and 2015. Many of these convictions have since been quashed, raising questions over the lack of oversight over certain private prosecutions.

Final thoughts

Private prosecutions are not a shortcut to justice, nor are they a panacea for systemic failings in the justice system, but they do provide the public with essential access to the criminal jurisdiction system where the state fails to undertake that role.

They require careful handling, an expert legal team, and a genuine public interest element.

Used responsibly, they offer a route to justice when public authorities do not (or cannot) act. But used carelessly, they risk undermining the fairness and integrity of the criminal justice system.

If you are aware of a case that may merit private prosecution, or need assistance in defending one, do get in touch.