Private Prosecutions

In this age of austerity the state prosecution agencies are increasingly unable to dedicate the time and resource that is required to launch successful criminal proceedings. Where such a hurdle is encountered private prosecutions can provide victims of crime with a viable alternative route to achieving justice.

Starting a private prosecution

Commencing and seeing through a private prosecution is not a step to be undertaken lightly.  There are always significant costs involved and there is currently no legal aid available to support these proceedings. We can help to mitigate the costs involved by planning and streamlining the investigation and bringing those responsible to account as swiftly and efficiently as possible.

We have experience of advising and conducting prosecutions for a varied range of clients including:

• victims of fraud, forgery and general criminal offences;
• organisations who take action against dishonest or fraudulent employees;
• professional regulators who bring actions for illegal practice;
• industry regulators who can use criminal enforcement alongside their civil enforcement regime;
• fire authorities who prosecute for fire safety failings;
• charities who use criminal prosecutions to further their charitable objectives;
• families who seek to bring proceedings against medical professionals following the death of a loved one;
• businesses who use criminal enforcement to protect their intellectual property;
• victims who have suffered loss as a result of lies told by others during court proceedings.

By involving us from the earliest stage we can advise you on what course of action is best suited to your particular case. On some occasions a private prosecution may be the appropriate response but on others it may be more advisable to try and facilitate the involvement of the state prosecution agencies or to commence civil litigation.

PRIVATE PROSECUTIONS: FREQUENTLY ASKED QUESTIONS

Who can bring a private prosecution?

A private prosecution can be started by any individual, victim, organisation, or company. Anyone has the right to bring a private prosecution, unless the offence is one that requires the consent of the Director of Public Prosecutions (DPP) or the Attorney-General.

What cases are most suitable for a private prosecution?

• a crime has been committed in the UK
• the offender is identifiable and is resident in the UK
• evidence has been obtained or is available to prove the offence
• the state prosecution agencies have been approached but have decided not to commence a public prosecution or there is a justifiable reason as to why those agencies have not been approached
• the prosecutor can demonstrate that there is a proper motive to bringing the prosecution

Why commence a private prosecution?

• to bring an offender to justice and deter others from behaving in a similar fashion
• to protect the public or otherwise in the public interest
• it is no longer practicable to commence civil proceedings (i.e. due to passage of time or the offender has a lack of assets)
• to deprive the offender of the proceeds of their crime

Why should you instruct a lawyer before you start a private prosecution?

Private prosecutions involve a complexity not found in public prosecutions. Lawyers who are expert in this field can help you to decide whether to commence a prosecution after they have advised whether there is sufficient evidence and whether a prosecution would be in the public interest. A person bringing a private prosecution is required to comply with a statutory disclosure regime which is complicated and onerous. Lawyers can assist you to manage that process to ensure you meet your legal obligations.

What degree of control do you have over your private prosecution?

You will have some control over a private prosecution but not to the same extent as you would in civil proceedings. The lawyers who will act on your behalf also have a duty to act as "Ministers of Justice" and must therefore act to the same high standard expected of a public prosecutor. That means that you will be obliged to supply all relevant material to the lawyer to review and they will be obliged to disclose to the offender material that might reasonably be considered capable of assisting the defence case or undermining the prosecution case.

Is legal aid available to a private prosecutor?

Unlike public prosecutions legal aid is not available to those who bring a private prosecution. Accordingly, if you intend to bring a private prosecution you need sufficient funds available to conduct the case from beginning to end. Unlike civil proceedings it is not generally appropriate to withdraw the charges and settle the case once the prosecution has commenced.

What are the likely costs involved in bringing a private prosecution?

The cost of bringing a private prosecution will differ according to a number of factors including; the complexity of the case, the number and nature of the charges and the way in which the offender responds to the proceedings. In our experience, even in the most straight-forward cases it will cost between £5,000 - £10,000 for a lawyer to conduct an initial review of the evidence and to advise on the likely success of a private prosecution. If having received that advice you wish to commence criminal proceedings the cost of is unlikely to be less than £50,000 and in many cases it will be significantly more.

Are legal costs recoverable at the conclusion of the prosecution?

It is possible for the private prosecutor to recover the costs of bringing a private prosecution for some offences at the conclusion of proceedings. These costs will normally be awarded from central funds and accordingly the prosecutor is not dependant on the offender having the financial means to pay their costs. The court can also make an order awarding the private prosecutor costs irrespective of the result. In principle that means if the offender is acquitted costs can be awarded to the prosecutor. Importantly, the private prosecutor is generally not required to pay the offender’s costs in the event that they are acquitted, provided the prosecutor can demonstrate that they brought the prosecution in good faith and their conduct was not improper. This is an area of significant complexity and for that reason is one, which again, you will benefit from the advice of a lawyer who has expertise in this area.

What are the risks involved in bringing a private prosecution?

The DPP can take over a private prosecution with a view to continuing the proceedings as a public prosecution or to discontinue it. A private prosecution can also be ‘stayed’ (stopped) by the courts where it is found that to continue the prosecution would amount to an abuse of process. Prosecutions which fall into this category may not only lead to a costs award against the prosecutor but may also prevent the prosecutor recovering their costs as well the associated negative publicity and reputational impact. The likelihood of these risks occurring can be minimised by instructing a lawyer who understands and can manage the risks involved.

How we work with you

Our multidisciplinary team and flexible approach ensures that we will always seek out and deliver the solution to best meet your needs in the shortest and most cost-effective time frame.

If you are considering bringing a private prosecution and would like to discuss your case and the options that are available to you, please contact Melinka Berridge.

CONTACT OUR PRIVATE PROSECUTION LAWYERS