Private Prosecutions – A time for change?

Under section 6(1) of the Prosecution of Offences Act 1985, any individual or company can bring a private prosecution. This provides a way to pursue a prosecution other than through the traditional means i.e. governmental bodies.  It can be an attractive alternative for a number of reasons as it may be quicker than a prosecution by the Crown Prosecution Service (CPS) and to a degree those bringing the prosecution can control the speed and direction of the matter. 

Budget cuts are still affecting law enforcement bodies such as the police/CPS/Serious Fraud Office, among others, which can lead to drawn out proceedings. The issue was compounded by the Covid 19 pandemic and there is still a major backlog of cases in courts. 

Although the courts are extremely busy, private prosecutions can still be quicker and some matters may even be resolved before the authorities would have made a charging decision. This is because the prosecution will inevitably take priority for those bringing it, whereas the authorities have to balance budgetary constraints and resources issues in terms of the investigators and lawyers they have at their disposal.  

Another attractive feature of private prosecutions is that they may enable victims to feel more closely involved in identifying issues and providing input in decision making. A conviction in a private prosecution can lead to the same punishment as would be handed down if the CPS or other prosecutorial body carried out the prosecution, therefore it cannot be looked upon as a lesser or more inferior route to justice. 

One of the most significant things to note, however, is that the CPS can decide to take over a private prosecution at any point, either at the defendants’ request or if it decides to do so on its own volition. This may lead to the proceedings being discontinued or a different outcome to that which the individual or business hoped for. 

Important considerations before initiating a private prosecution 

Private prosecutors are still bound by the Code for Crown Prosecutors. This means that they must consider the evidential test contained within the Code for Crown Prosecutors before bringing any matter to court. There must be sufficient evidence for a realistic prospect of conviction, if not private prosecutors risk discontinuance by the Director of Public Prosecutions, who can take over any prosecution under section 6(2) of the Prosecution of Offences Act 1985, and discontinue it under section 23. Discountenance is generally enforced if the evidential stage is not met or if it would not be in the interests of justice. 

Historically we would have seen organisations such as the RSPCA using private prosecutions to take defendants to court for animal cruelty allegations. It was not so common for proceedings to be brought by individuals but this has changed over time with people and businesses seeking to take those they believe have wronged them in the criminal sense to court to seek justice. 

Whilst private prosecutions can enable victims of crime to get justice there is also a risk that it may be abused by way of mis-judged or even malicious allegations from complainants or aggrieved parties.  In order to defend against a private prosecution, knowledge of general criminal defence is required but also an understanding of the tactics used in private prosecutions and how to deal with them. 

Recent concerns about private prosecutions 

As has been widely reported in recent months, the Post Office used the prosecutorial powers afforded to them to bring proceedings against more than 700 Post Office employees based on information from their Horizon computer system. It later transpired that there were flaws in the Horizon system which led to a flawed prosecution and ultimately a major miscarriage of justice with defendants being convicted, imprisoned and in some cases bankrupted; it also led to some people taking their own lives.. Plans have since been announced for the mass exoneration of sub postmasters and compensation for those impacted by the scandal but for some this is too little too late and there have been calls for a complete overhaul of the system which allows private bodies and individuals to bring prosecutions. 

As a result of the Post Office scandal, it is understood that plans are now being considered by ministers which could see bodies barred from pursuing private prosecutions. These plans have gained cross political party support. A new regime for inspection, a code of standards and the power to remove the authority to conduct private prosecutions are being discussed. Private prosecutors have also historically been able to recover costs regardless of whether a conviction results, and funding arrangements will also be reassessed in light of the Post Office scandal.  

In light of this, it is crucial that those considering a private prosecution give detailed consideration of the evidence available and whether there genuinely is a realistic prospect of conviction and if it is in the public interest. It is possible that the Post Office inquiry will now deter major bodies from using private prosecutions for fear of being sued but equally it should not be allowed to act as a bar to properly considered and prepared cases 

Private prosecutions can be a good way for victims to pursue justice when the police or CPS will not. However, it is critical to ensure that the same standards expected of the CPS are met when pursuing a prosecution. If you are subject to a private prosecution our expert defence lawyers can advise on the best approach including identifying potential flaws in the procedure and weaknesses in the evidence.