Commencing a Private Prosecution

The Power to Bring a Private Prosecution

A Prosecution has long been able to be brought by a “public prosecutors” who simply have an inferred power to prosecute. For example, the Crown Prosecution Service are able to simply issue charges rather than requiring the assistance of the Courts. This observation should be coupled with the introduction of the SJPN procedure which allows for automated prosecutions. The term was originally in the Criminal Justice Act 2003 which has since been amended. The Criminal Justice and Courts Act 2015 replaced the term “public prosecutor” with “relevant prosecutor” who have the power to issue a written charge.

However, there is the general power afforded to all individuals and institutions under Section 6 of the Prosecution of Offences Act is to be able to institute proceedings. 

It is surprisingly simple to commence a Private Prosecution. The initial steps are to prepare an information which contains the charge that a prospective Defendant would face. This needs to be served upon the relevant Magistrates Court. The information is reviewed and if agreeable a summons must also be provided to the Court. Those documents are then served on the Defendant and a date for them to attend Court is set.

The Test a Prosecutor Must Apply

Whilst there is a right to bring such a Prosecution, it is expected that a Private Prosecutor will act to the same standards as a Public Prosecutor.

There is a two-stage test which is in place for any decision to prosecute an individual for an offence that has been allegedly committed.

The first stage is the evidential stage and the second is whether or not it is in the public interest. When deciding whether there is enough evidence to charge, a prosecutor must consider whether evidence can be used in court and is reliable and credible. The Prosecution must be satisfied there is enough evidence to provide a "realistic prospect of conviction" against the defendant. The finding that there is a realistic prospect of conviction is based on an objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely.

A prosecution will usually take place unless we can be sure that the public interest factors tending against prosecution outweigh those tending in favour.

The Risks in Commencing a Private Prosecution

A private prosecution is likely to be expensive and there is no guarantee of success. If the proceedings are brought to an end, the Defence can apply to seek their costs pursuant to Section 19 of the Prosecution of Offences Act 1985.

The CPS retain a power to take over a prosecution if they take the view that the evidential test is not met and/or the proceedings are not in the public interest

It is also realistic to anticipate that the Defence will suggest that the proceedings are an abuse of process (i.e. they not in the interests of justice) and / or there is no case to answer. This would also bring proceedings to a close and have potential costs implications for the Prosecution. Rhys regularly deals with these applications and is well placed to robustly respond.

The Test that a Court will Apply

Criminal Procedure Rule 7.3 requires that an allegation of an offence in an application for the issue of a summons or warrant must contain:

a.      a statement of the offence that

           i.      describes the offence in ordinary language, and

           ii.     identifies any legislation that creates it; and

b.     such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

CrimPR 7.2(6) requires that an application for the issue of a summons or warrant for arrest must concisely outline the grounds for asserting that the proposed defendant has committed the alleged offence or offences, and an indication of the evidence to be relied upon if the court agrees to do so. This would be done in the form of a case summary, which is a document we are in the process of providing.

The general principle in respect of a summons is that a summons ought to be issued pursuant to a properly laid information unless there are compelling reasons not to do so, most obviously if an abuse of process or impropriety is involved, or whether it would be vexatious to issue a summons, in other words whether there is the presence of an improper ulterior purpose and/or long delay. The consequences may be significant but the threshold to grant a summons is low.

There is no strict test as to the issuing of a summons, it is primarily viewed as a discretion with the following relevant factors (R v West London JJs ex parte Klahn [1979] 1 WLR 933:

1. Is the allegation is of an offence known to law, and if so, that the essential ingredients of the offence are prima facie present;
2. Is the offence alleged out of time;
3. Does the court have jurisdiction;
4. Does the informant have the necessary authority to prosecute;
5. Does the court consider whether the allegation is vexatious.

In the case of Sunderland the court observed (at para 22):

“… [The magistrate] was obliged to come to a judicial conclusion on whether or not to issue either or both summonses, and that required a review of whether there were prima facie evidence of the ingredients of the common law offence. We have set them out. Had he conducted a rigorous analysis of the legal framework, he could not reasonably have concluded that there was such.”

In light of the above, whilst the test for issuing a summons is low it is necessary to be able to show prima facie evidence of the offence having been committed. 

It is important to ensure you are fully advised of the merits of a private prosecution and the correct approach to take before commencing proceedings.