Starting a private prosecution; getting it right first time

12 February 2018

A private prosecution, is a criminal prosecution commenced by a person or organisation rather than a public prosecuting authority.  A private prosecution is commenced in the same way as a public prosecution, by laying a charge sheet referred to as an ‘information’ in a Magistrates’ Court.  Once the information has been laid in court the Clerk or Magistrate will check to see if it is in the correct form and if it is they will issue a warrant or summons in order to secure the attendance of the defendant at court on a future date.

Under the current arrangements the discretion to issue an information is wide.  The leading case on the exercise of that discretion is R v West London Justices ex parte Klahn [1979] 2 All ER 221, which held that the court should consider:

  1. Whether the ingredients of an offence known to the law are prima facie present;
  2. Whether the offence is ‘out of time’;
  3. Whether the court has jurisdiction;
  4. Whether the informant has the necessary authority to prosecute; and
  5. Whether in all the circumstances the allegation is vexatious.

However, because commonly the court has only limited information before it to make this assessment, in practice these considerations often do not arise until after the prosecution is underway.

On 02 April 2018 the Criminal Procedure Rules (CrimPR) will be amended to codify the steps which must be taken before a Magistrates’ Court will issue a summons or a warrant in respect of a prosecution brought by a private individual. The amendments will, in due course, be followed by a new application form.

The amendments will require an unrepresented prosecutor to:

CrimPR7.2(6)

  1. Concisely outline the grounds for asserting that the defendant has committed the alleged offence or offences;
  2. disclose—
    1. details of any previous such application by the same applicant in respect of any allegation now made, and
    2. details of any current or previous proceedings brought by another prosecutor in respect of any allegation now made; and
  3. include a statement that to the best of the applicant’s knowledge, information and belief-
    1. the allegations contained in the application are substantially true,
    2. the evidence on which the applicant relies will be available at the trial,
    3. the details given by the applicant under paragraph (6)(b) are true, and
    4. the application discloses all the information that is material to what the court must decide.

The introduction of CrimPR7.2(6)(b) is a timely reminder of the need for an application to be correctly made in the first instance. However, CrimPR7.2(6)(c)(iv) is drafted in surprisingly vague terms and it remains to be seen how it will apply in practice.

Presently, there is no obligation on the Magistrates’ Court to make inquiries before issuing a summons.  However, if there is material before the court which persuades a Magistrate that it would be wrong to issue a summons then they are entitled to act upon it and should not shut their eyes to it. The protection for a prospective defendant was to be found in applications to dismiss or to stay (R. v Bradford Justices Ex p. Sykes [1999] Crim. L.R. 748). The position is slightly amended where the Crown Prosecution Service have previously discontinued a prosecution.

While it currently open to the Court to make inquiries prior to the issuing of a summons, this amendment may have the effect of these inquiries being held with increasing frequency. More than ever, the early engagement of specialist practitioners is recommended to ensure that an application is compliant, thereby reducing unnecessary delay and excessive cost.

Melinka leads the team at Kingsley Napley responsible for conducting private prosecutions. She also a founding member of the UK’s first Private Prosecution AssociationMatthew Hardcastle is an associate solicitor in the Criminal Litigation team and works with Melinka to assist victims of crime who seek justice through the use of private prosecutions.

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