Malicious prosecution and the risk to private prosecutors
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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