Starting a private prosecution – evidential sufficiency & duty of candour

Starting a private prosecution is always a step that should be taken carefully and only where a proper criminal offence can be established.  A recent High Court decision Whitehead v Westminster Magistrates’ Court [2024] EWHC 2868 (Admin) serves as a helpful reminder of the steps that one must take to establish valid grounds before a summons can be issued in a private prosecution.

The facts

• J was a police officer who stopped a vehicle being driven by C to investigate various offences, primarily road traffic offences. 
• There were heated exchanges between J and C over this incident, all of which were recorded.  These recordings were later posted online to the YouTube channel.
• W, who had a business offering legal advice to the general public (but is not a qualified lawyer) approached C, having seen the online recordings of the incident, and offered to privately prosecute J on C’s behalf. 
• Without reporting the incident to the police as a crime, W applied for a summons for various offences. The District Judge refused to issue the summons on the basis he was not satisfied there was a prima facie case made out against J as regards to the offences alleged.
• J then applied for a judicial review of the Judge’s refusal to issue a summons.

The law

The starting point is that the person applying for a summons must be able to establish the ‘threshold test’. Namely, firstly, was the allegation an offence known to the law, and if so, whether the essential ingredients of the offence are prima facie present, that the offence is not time-barred, that the court has jurisdiction; and whether the informant has the necessary authority to prosecute[1]. 

In this case the District Judge was not satisfied that there was a proper basis for establishing unlawful conduct and thus the case failed at the first hurdle.  The High Court did not add further gloss to the ‘threshold test’ noting it was ultimately an assessment of evidential sufficiency, observing that,

The burden of proof is on the prosecution to establish that his actions were unlawful, as an ingredient of each relevant offence, and there must be evidence to prove that.[2]

The High Court also referenced Part 7 of the Criminal Procedure Rules (the Rules), specifically those relevant to seeking to obtain a summons in a private prosecution. The steps outlined in the Rules ensure that private prosecutors provide full and relevant information to the court thus enabling the decision-maker to make an informed decision before issuing the summons. 

Importantly, the Rules provide a list of criteria for the court refusing to issue a summons[3], specifically where:

• a court has previously determined an application by the same prosecutor which alleged the same or substantially the same offence against the same defendant on the same or substantially the same asserted facts;
• the prosecutor fails to disclose all the information that is material to what the court must decide;
• the prosecutor has reached a binding agreement with the defendant not to prosecute or has made representations that no prosecution would be brought, upon which the defendant has acted to the defendant’s detriment;
• The prosecutor asserts facts incapable of proof in a criminal court as a matter of law;
• The prosecution would constitute an assertion that the decision of another court or authority was wrong where that decision has been (or could have been or could be) questioned in other proceedings or by other lawful means;
• The prosecutor’s dominant motive would render the prosecution an abuse of the process of the court.

OUR Observation

As a practitioner who acts for those who starting a private prosecution but also for those responding to the threat of one, it concerns me that many who engage in this process don’t seem to understand the weighty responsibilities that attach to bringing a private prosecution. 

Starting a private prosecution is a serious matter and not one to be taken lightly. For those accused of committing a crime it is likely to have a very serious impact on their health, their finances and employment and their reputation.  Moreover, and as the High Court identified in this case, our criminal justice system is overwhelmed and ill-judged private prosecutions are a waste of valuable and limited public resources which could better be used elsewhere.

The Private Prosecutors’ Association Code for Private Prosecutors  sets out very clearly the key considerations that apply when a private prosecutor seeks to charge and commence proceedings.  It is a helpful reminder of the steps that a private prosecutor should take to ensure they don’t fall foul of the law.

Ultimately, as this case reminds us, the private prosecutor is subject to a duty of candour and should take all efforts to ensure firstly, the evidence is sufficient to prove the offences alleged, and secondly, that they place before the decision-maker all relevant information to enable them to make a fully informed decision as to whether a summons should be issued.

Melinka  heads up Kingsley Napley’s Regulatory department and established the firm’s private prosecution team. She was a founding member of the Private Prosecutors’ Association. She started her career as a Crown Prosecutor in Wellington, NZ. She now specialises in advising individuals, corporates, charities, and regulators on the suitability of their cases for prosecution.