Busting myths: how private prosecutions work in the UK

Any individual or corporate entity in England and Wales is entitled to bring a private prosecution against a third party.

It’s been this way for centuries, yet the idea that only official state bodies have the right to prosecute is one of several well-established myths that continue to muddy the waters. Worse, they paint private prosecution in a decidedly negative light.

To address this imbalance, we’ve gathered five of the most abiding myths in private prosecution with the intention of dispelling them once and for all.

An increasing number of people are losing faith in state-funded litigation, triggering a sharp rise in private prosecutions across the UK.

The 5 most common myths in private prosecutions

Myth 1. Private prosecutions are very expensive

It is a widespread myth that private prosecutions are only for the fabulously wealthy.

Before a case is even brought before the court, the individual or organisation bringing the private prosecution must possess sufficient funds to prosecute the case through to its conclusion. On larger cases, this doesn't come cheap. However, in relatively straightforward cases, the costs of the investigation can be streamlined and conducted relatively cheaply.

Depending on the volume of evidence and the time it takes to complete the initial investigation, the cost of bringing a private prosecution can fluctuate dramatically. And, should it be decided that the private prosecution was brought forth incorrectly, the prosecuting party may be ordered to pay the defendant’s legal fees on top of their own.

So, how can you mitigate costs? A private prosecutor may be able to obtain litigation funding to assist. However, this is a new and emerging area, so careful consideration should be made supported by trusted legal advice from lawyers who specialise in this area. Once a summons has been obtained, then reasonable costs of the prosecution can also be reclaimed from Central Funds, provided the case is bought correctly. This applies even if the defendant is acquitted. Additionally, upon the successful conclusion of a prosecution, compensation (up to a maximum of £5,000 in the magistrate’s court; unlimited in crown court) and confiscation orders can be issued as part of the sentence. The latter are particularly useful as a means of depriving the convicted party of any financial benefit they may have gained from their criminal activity.

Nevertheless, it’s imperative that you carefully consider the financial implications before bringing a case.

Myth 2. Only certain people can bring private prosecutions

The inviolable right to bring a private prosecution was officially recognised in the Prosecution of Offences Act that came into effect in 1985. Yet many still believe only certain people have the right to bring a private prosecution in the UK.

Admittedly, there are some cases that require the private prosecutor to obtain consent from the Attorney General or the Director of Public Prosecutions (DPP) before they’re legally allowed to commence proceedings. There are also several circumstances under which the DPP or Crown Prosecution Service (CPS) can assume control, or discontinue a private prosecution.

The latter can arise for various reasons. For example, if the case does not meet the full code test or the prosecution is being bought for vexatious reasons, such as to leverage a civil claim.

Either way, so long as you meet the above criteria, there’s nothing to stop you bringing a private prosecution. Though bear in mind that early consultation with specialist investigators and lawyers, from the outset, is vital to prevent future issues from arising.

Myth 3. Civil cases are preferable to private prosecutions

Something we hear all the time is that pursuing a civil case is preferable to private prosecution. The nature of litigation will depend on the specifics of the case, but a criminal prosecution, provided it is bought correctly, can have substantially more impact in seeking justice when wronged.

Cost and efficiency

Certain offences — such as data theft and fraud — are often cheaper and quicker to prosecute under criminal law. There are opportunities to recover the reasonable costs of the prosecution, post summons, from Central Funds; even if the defendant is acquitted providing the case was bought correctly. Moreover, the provisions made under the Proceeds of Crime Act 2002 make it easier to recover stolen funds; this is especially enticing for individuals or organisations working within tight budgetary constraints.

Deterrence

Criminal litigation also carries the dual threats of a custodial sentence and a criminal record, acting as a further deterrent to wrongdoers. A private prosecution must never be brought for vexatious reasons, of course. Nevertheless, whichever way you look at it, there are many reasons to consider this route when contemplating a private prosecution.

Myth 4. You can’t continue a prosecution initiated by the police

The fact that a prosecution was originally initiated by the police doesn't prohibit private citizens from restarting or continuing it.

Per sections 23(9) and 23A(5) of the Prosecution of Offences Act 1985, the discontinuation of a case doesn’t prevent the victim from beginning fresh proceedings in future; so long as the defendant hasn’t already been cautioned for the same offence by the police.

For example, a prosecution may be restarted if new evidence comes to light that increases the likelihood of obtaining a successful conviction. The same is true if, upon completion of a successful assessment of the case under the Victim’s Right to Review Scheme, the original decision is reversed. Or in cases where the police have decided not to investigate at the time the offence was committed. Although, in such situations, it’s advisable that the private prosecutor is made aware of the reasons for refusal, should these have an impact on the case.

If the police has referred a case to the CPS, who, on reviewing the evidence, deem there was there was insufficient evidence or that the case was not in the public interest, then this would likely mean that a private prosecution, with the same material, would be unlikely to succeed. This is because the law firm would be applying the same test as the CPS. That said, if further investigation identifies additional material then a fresh test can be applied by specialist law firm, which may result in there being sufficient grounds to commence a private prosecution.

In other words, a prosecution can be continued privately whether it was started by the police or not. And, because budget cuts in the UK criminal justice system have led to cases of fraud — often amounting to hundreds of thousands of pounds — being deemed too labour and resource intensive to pursue, private prosecution is often the only recourse victims have.

Myth 5. It's better to wait for the police to investigate

Sticking with the police theme, a common misconception is that the victim should wait for the police to decline to investigate before commencing proceedings.

However, in this day and age, the police may decide not to pursue cases due to budgetary restraints or limited resources, particularly in cases of fraud. Understandably, policing efforts have shifted towards violent crime. Due to increasingly limited resources, cases of data theft, fraud, etc. usually take a back seat to murder, robbery, and other offences against the person.

We would generally advise reporting a matter to the police, as failure to do so may be questioned by the defence. However, a police investigation may take weeks or months; if it happens at all. And, in most cases, speed is of the essence in gathering evidence. Gathering the evidence correctly, quickly, and efficiently as early as possible will ensure that evidence is not lost or its value reduced, and, provided this is done correctly from the outset, this can assist the police should they decide to take on a case.

In any event, the Code for Private Prosecutors clearly states that there’s no legal obligation on the part of the private prosecutor to notify the CPS, DPP, or indeed any state agency that they are considering or have begun a private prosecution.

You may wish to work collaboratively with the police at different stages, of course. Deciding whether or not to contact the police first is subjective and would be a sensible first step. However, gathering evidence quickly and correctly, to support a police or private prosecution, should be considered a priority.

Private prosecutions on the rise

Before bringing a private prosecution, it’s worth reviewing the PPA’s Code for Private Prosecutors. Although you have no legal obligation to adhere to every precept laid down in the document, it provides vital insights for people who are unsure of standard legal process or need clarification on specific issues. This ensures that process mirrors the highest standards required of a state-run prosecution wherever possible, reducing the likelihood of issues arising at court, and giving the best chances of success.