Author: Niall Hearty
15 April 2021
4 min read
With the use of private prosecutions on the increase, Niall Hearty of Rahman Ravelli considers the advantages and disadvantages of them.
While there is no available data on the total number of private prosecutions, the anecdotal evidence suggests that they have been increasing in recent years. The Private Prosecutors’ Association (PPA) has suggested that HM Courts and Tribunals Service should record the number and type of private prosecutions. The Criminal Cases Review Commission has also said the benefits of such a register should be considered.
The right to bring a private prosecution is provided under Section 6(1) of the Prosecution of Offences Act 1985 (POA 1985). Private prosecutions can be bought by any individual or any company. In recent times, with law enforcement agencies experiencing bigger caseloads and increasingly stretched resources, private prosecutions are another option for individuals and businesses seeking redress for criminal activity conducted against them.
In order to ensure best practice and avoid criticism, those bringing a private prosecution should follow the guidance contained in the Crown Prosecution Service (CPS) Code for Crown Prosecutors; which includes the Full Code Test. The Full Code Test details the principles that should be considered when deciding whether to bring a prosecution: is there sufficient evidence to provide a realistic prospect of conviction and, if so, is the prosecution required in the public interest? The PPA Code for Private Prosecutors, first published in 2019, is voluntary but should also be viewed as a guide to best practice.
While there are many similarities between private and public prosecutions - as they are essentially seeking the same outcome – there are also important differences. These relate to the funding and conducting of the two types of prosecution. These two factors (as well as others) have to be considered when deciding whether it would be beneficial to bring a private prosecution.
There are some benefits to bringing a private prosecution rather than pursuing the public prosecution route:
One important factor in deciding whether to bring a private prosecution is that those bringing such an action have far more control over the proceedings - from the start (the investigation stages) through to the finish (any prosecution that will follow) – than they would have with a public prosecution. Those who choose to bring such proceedings will be able to dictate the pace and the direction of the prosecution, rather than it being in the hands of the police and CPS. They can also determine the amount of input they have.
Prosecuting authorities may lack the resources or specialist know-how to pursue certain types of cases fully or effectively. Private prosecutions can be supported with any appropriate resources that those bringing the prosecution deem necessary, which arguably means that it is being brought from the strongest possible position. Depending on the circumstances and the funding available, private prosecutions are not limited to financial and budgetary restraints in the way public prosecutions are.
In some cases, public prosecuting bodies may be unwilling to bring prosecutions. Many cases will not make it past a charging decision.
Public prosecuting bodies can decide not to prosecute a case for a variety of reasons; including the aforementioned lack of resources or insufficient specialist knowledge, or the belief that the case is not, on balance, cost effective. But this is no bar to a private prosecution. This was underlined in the judgement in R v Zinga  EWCA Crim 52, with the Lord Chief Justice stating: “There is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions.’’
Private prosecutions, therefore, provide an alternative route, and ensure that individuals and companies are not constrained by limits on state funding. Those bringing a private prosecution can choose highly-experienced legal practitioners and experts to support their case and maximise their chances of success.
A successful private prosecution also sends out a strong deterrent message; emphasising a willingness to take action against those suspected of wrongdoing.
Victims supported by public prosecutions will endure a case progression timeline dictated by an overstretched and under-funded police force and CPS; especially if the case is regarded by these organisations as low priority. Private prosecutions can provide a far faster route to conclusion, with shorter proceedings often meaning less overall costs in comparison to protracted, publicly-run criminal cases.
It should also be noted that, under Section 17 of the POA 1985, costs can often be recovered from central funds (whether or not the defendant is convicted), or from the defendant where applicable. Under Section 17, a court may, in any proceedings in respect of an indictable offence - and in any proceedings before a Divisional Court of the Queen’s Bench Division or the Supreme Court in respect of a summary offence - order the payment out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings.
Private prosecutors do not enjoy the same powers as public prosecutors and, as a result, are limited in the action that can be taken. Yet they face any of the same obligations.
For example, a private prosecutor will have limited powers to require the provision of documents. Attempting to achieve the same result – for example, using the courts to obtain documents – can be an expensive task. Yet while a private prosecutor has such limited powers relating to documents, they are still obliged to comply with the disclosure principles under the Criminal Procedure and Investigations Act 1996 (CPIA); relating to the recording and retention of all relevant material which does not form part of the prosecution evidence in the case.
Those considering a private prosecution should think carefully about their funding situation before proceeding. Criminal investigations and subsequent prosecution proceedings can be volatile and take unexpected turns. Sometimes - and especially with complex cases - it is difficult to foresee how a case may develop, and such unpredictability can have an effect on costs.
To take one example, the defendant in a private prosecution could claim that the prosecution was brought with malice or that evidence was fabricated. This could lead to a civil claim for malicious prosecution being brought.
Private prosecutions are a useful alternative to relying on public prosecuting bodies to advance cases. Such a prosecution can be quicker than the traditional public prosecution route and can be guided in a way that suits those bringing it. But those considering bringing one must also be aware of the risks. It can, in some circumstances, be an expensive and complex pursuit.
Those thinking of going down the private prosecution route need to use experienced litigators with substantial knowledge of the relevant issues and processes, in order to determine whether such a course of action would be worthwhile.
Niall has a wealth of corporate crime expertise and an ability to coordinate global bribery and corruption cases. His achievements in such investigations have made him a logical choice for corporate clients.