When not to commence a private prosecution

Private prosecutions offer an excellent legal remedy to those who do not have the support of the state prosecuting agencies to commence a prosecution.  But if you fancy yourself as a would-be private prosecutor, be warned, there are significant risks associated with starting a prosecution which are motivated purely out of self-interest and as a means to blackmail or punish another.

On 15 September 2015, the Attorney General addressed the Justice Committee on what is perceived to be a growing trend in private prosecutions over the more traditional state-run public prosecutions. In particular the Committee questioned as to whether private prosecutions could appropriately be described as a “clever alternative to civil litigation” or that the advantage with such proceedings was that the “client controls the speed of the investigation and prosecution rather than relying on the police or the CPS”. That enquiry boils down to two key questions that the private prosecutor should have in mind:

• Is it appropriate to opt for a private prosecution without first reverting to the state prosecution agencies?
• Is it appropriate to use the threat of private prosecution as leverage to achieve a quicker or easier financial settlement than civil proceedings may provide?

Private prosecution vs Public prosecution

Section 6(1) of the Prosecution of Offences Act 1985 expressly allows any individual or company to bring a private prosecution. There is no obligation on the private prosecutor to notify the police or CPS in advance of their intention to do so.  However, failure to do so does give rise to the following risks:

• the CPS may decide to take over a prosecution, either of their own volition or on the application of the parties, either in order to continue with it or to discontinue it;
• the private prosecutor will be more susceptible to challenge by the defence for an abuse of process where they have not informed the CPS of their intention to commence a private prosecution;
• the private prosecutor may be less likely to recover their investigation and prosecution costs where they have not availed the CPS of the opportunity to first commence a public prosecution.

It should also be noted that an unsuccessful private prosecution can, and usually will, attract reputational damage to the prosecutor through bad publicity.

In some cases there may be legitimate reasons for not involving the state prosecution agencies but in my view they should be the exception rather than the rule for the reasons set out above.

Private prosecution vs. Civil proceedings

When the CPS commences a prosecution they are obliged to ask two questions:

• Is there sufficient evidence against the accused?
• Is it in the public interest to bring the case to court?

Some assessment of evidential sufficiency will always need to be undertaken by the private prosecutor if they are serious about their chances of success.  However, the private prosecutor, unlike the CPS, is under no obligation to determine whether the prosecution would be in the public interest.  However, in my experience if you are unable to articulate how such proceedings can be justified to be in the public interest, as opposed to purely in your self-interest, then this may be fatal to the success of your prosecution.  If for example, you were able to recover loss through the civil courts but chose not to do so because you felt you would have greater leverage and chance of success by threatening criminal proceedings against those who had caused the loss, then upon commencing a private prosecution you could be subject to challenge for an abuse of process.  That is not to say that in some cases there will be merit in running concurrent civil and criminal proceedings, but very careful consideration needs to be given as to what course of action is appropriate, and when, to avoid any suggestion of bad faith on the part of the prosecution.

Whether a public or private prosecutor, in order to proceed through the criminal courts, a prosecution needs to be demonstrably fair and proportionate in the manner it is conducted both during the investigation and the court proceedings.  With the assistance of those who are expert in this field the risks associated with bringing private prosecutions can be managed and mitigated.  It is important that advice is taken at the earliest stage as to whether this legal remedy is the appropriate and the best approach for you.