Private Prosecutions

Private prosecutions involve a complexity not found in public prosecutions. Our private prosecution team is made up of highly experienced criminal prosecutors and defenders who can help you to decide whether to whether there is sufficient evidence to commence a prosecution and whether it would be in the public interest.

The private prosecutor is required to comply with a statutory disclosure regime which is complicated and onerous. Our lawyers can assist you to manage that process to ensure you meet your legal obligations.

Conversely, if you face a threat of a private prosecution, our lawyers can help you to prevent it from starting or defend you if it is already underway.

Our private prosecutions team is led by Melinka Berridge and Alun Milford.

Melinka  leads Kingsley Napley’s Regulatory department and co-founded the Private Prosecutors’ Association of England and Wales. Starting her career in 2000 as a Crown Prosecutor, she handled serious crimes and regulatory offences. She now advises individuals, corporates, charities, and regulators on the suitability of cases for prosecution.

Alun is a partner in the Criminal Litigation department, which he joined in 2019 following a long career as a public prosecutor which culminated in appointments as head of the Crown Prosecution Service’s organised crime division (2009 to 2012) and general counsel at the Serious Fraud Office (2012 to 2018).

Bringing Private Prosecutions

We understand and follow the ethical duties of prosecutors, ensuring fairness, integrity, and justice in all legal proceedings. We fully adhere to the principles established in the Code for Private Prosecutors issued by the Private Prosecutors’ Association

We have experience of advising and acting on all stages of the criminal process, including:

• General investigations – conducting investigations or working with private investigators to ensure all evidence obtained is admissible and all reasonable lines of enquiry have been exhausted;
• Financial crime investigations - we work with experienced financial crime investigators to locate assets and properties owned or used by defendants which can then be restrained, to understand complex corporate structures, and to examine financial records which may lead to the identification of further offences and offenders;
• Disclosure – ensuring all relevant material is recorded and retained, establishing protocols for the management of such material, and generally ensuring disclosure obligations are discharged;
• Charging and commencing proceedings – preparing the necessary paperwork for commencement of criminal proceedings, and lodging the ‘information’ in court and obtaining summonses;
• Pre-trial challenges – responding to all pre-trial challenges, most commonly around disclosure or admissibility of evidence, referral to the DPP or otherwise any abuse of process;
• Trial and sentencing – conduct of trials and attending sentencing hearings upon conviction;
• Costs – at the conclusion of the trial representing the interests of the prosecutor on costs applications or other ancillary applications.

Defending Private Prosecutions

In the field of criminal litigation Kingsley Napley is ranked No. 1 in all of the legal directories. We specialise in taking action to prevent improper private prosecutions from being commenced.  Where they are underway, we act to ensure that the defendant’s rights are protected and any prosecution that is commenced is conducted fairly and lawfully.

We provide support to those facing the threat of private prosecution in the following ways:

• Initial response – advising clients on how to reply to a letter before action, aiming to discourage the prosecutor from starting proceedings and highlighting the risks to them of doing so without a legitimate foundation to establish criminality.
• Challenging the laying of an information or application for summons – we will hold the prosecutor to account on their obligations as a ‘Minister of Justice’ to ensure compliance with Part 7 of the Criminal Procedure Rules.  Where necessary we will seek an oral hearing to ensure any application for a summons is subject to the appropriate level of judicial scrutiny. 
• Engaging with the CPS – where it is appropriate we support our clients to invite the CPS to take over and discontinue a private prosecution, and where they refuse without good cause, we have public law experts on hand to advise on the merits of a judicial review of that decision.
• Pre-trial challenges – we represent our clients on all pre-trial challenges; including challenges to inadequate disclosure, abuse of process and evidential admissibility. 
• Trial – providing robust defence at trial to secure the best possible outcome and manage the associated risk of reputational fallout.
• Costs – after the trial, we apply for costs to be awarded against a private prosecutor who acted improperly, or we defend against costs claims made against our clients

FREQUENTLY ASKED QUESTIONS

Who can bring private prosecutions?

Any individual, victim, interested party, organisation, or company can start a private prosecution. The right to bring a private prosecution is provided in section 6(1) of the Prosecution of Offences Act 1985. 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 England or Wales
• the offender is identifiable and s/he is resident in England or Wales or the company is registered in the UK
• evidence has been obtained or is known to be available, in order to prove the crime
• the traditional prosecuting agencies have been approached but have decided not to prosecute or there is a justifiable reason as to why the traditional prosecuting agencies have not been approached.
• the prosecutor can demonstrate that they have a proper motive to use the criminal court to hold the offender to account.

Why do I need a lawyer to support me bring a private prosecution?

Lawyers acting on your behalf in a private prosecution will undertake a number of tasks, including:

• conducting an initial review on the suitability of your case for a private prosecution
• conducting a full review of all evidence obtained
• advising on further lines of investigation and instructing private investigators and experts to provide evidence not yet obtained
• preparing evidence in a form suitable to commence criminal proceedings
• interviewing witnesses and drafting witness statements
• Managing your disclosure obligations to ensure that all material obtained in the course of the investigation is disclosed as required by law
• Preparing the charges and liaising with the courts to commence proceedings
• Instructing counsel and managing the smooth conduct of the case from the first appearance to trial, as well as sentencing and any associated hearings required to bring the proceedings to conclusion

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 as incurring 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.

I have been threatened with a private prosecution, what should I do?

You must act promptly.  It is important that you do not ignore this threat.  The private prosecutor is subject to the same Minister of Justice obligations as a private prosecuting authority.  Instructing expert lawyers at an early stage will provide you with the best possible chance of holding the private prosecutor to account and of dissuading the prosecutor to commence proceedings.

How do I stop a private prosecution that is underway?

There are various routes to stopping a private prosecution that has been improperly commenced or where there is some procedural flaw that cannot be rectified.  A lawyer with expertise in the field will look at all possible routes for challenge and will advise you what option provides you with the greatest chance of success.  Where it can be established that a defendant has incurred costs as a result of an improper act or omission by the private prosecutor, it may also be possible to obtain an award of costs from the prosecutor in favour of the defendant.

Our Work

• Bringing a Private Prosecution: We acted in a private prosecution for a businessman who commenced proceedings against a retired KC who had falsified documents during the planning process.

• Judicial Review – Refusal to Award Costs:  We conducted a successful JR of a decision by a trial judge not to award costs out of central funds to the private prosecutor at the conclusion of the trial.

• Confiscation Proceedings for an Executive Non-Departmental Public Body: We have specialist expertise in the field of confiscation proceedings commenced by regulators. By way of example, in 2015 we were instructed by the Security Industry Authority to conduct criminal confiscation proceedings against two security company directors. On 1 September 2015 at the Old Bailey, the co-directors were ordered to pay confiscation totalling £666,697 under the Proceeds of Crime Act 2002.  This was following their respective convictions of supplying 33 unlicensed guards in relation to 10 separate contracts around the greater London area. Disqualification orders were also made against the defendants.

• Victims’ Right to Review: We have acted for a number of victims of crime to request a review of certain decisions by the CPS not to charge a suspect.  Most recently we have advised on the VRR scheme in relation to historic sexual offending committed against a vulnerable individual by a health professional who was part of her care team.

• Defending a Private Prosecution: We have advised and defended several cases involving family disputes over the rightful benefactor of a parent’s estate.

• Challenging the Laying of an Information: We have acted on behalf of an individual who received notice from a private prosecutor of their intention to prosecute him for a statement made in court proceedings.  The private prosecutor’s improper approach provided us with a valid reason to challenge the prosecution being commenced.