Private Prosecutions and the Crown Prosecution Service

A private prosecution is a prosecution started by a private individual who is not acting on behalf of the police or other authorities.

An individual has the right to bring a private prosecution under section 6(1) of the Prosecution of Offences Act (POA) 1985 (sometimes informally referred to as The Prosecutions Offences Act 1985). However, the Director of Public Prosecutions (DPP) has the power under section 6(2) POA 1985 to take over private prosecutions.

In some cases, the private prosecutor must seek the consent of the Attorney General or of the DPP before they can bring their prosecution.

Under section 6 (2) POA 1985, there are circumstances in which the Crown Prosecution Service (CPS) can use the powers of the DPP to either continue the prosecution or stop it. If the CPS is asked to take over a prosecution, the CPS then has to decide whether it will do so.

As a private prosecutor does not have to tell the CPS that they are bringing a private prosecution, the CPS may find out about it in a number of ways, including:

• When the private prosecutor asks the CPS to take over the prosecution.
• When the defendant asks the CPS to take over the prosecution.
• Where a defendant needs to be extradited (brought from another country) and the Home Office refers the private prosecutor to the CPS.
• When a judge sends a report to the CPS.
• From a press report.

What does the CPS do when it finds out about a private prosecution?

If the CPS is asked to intervene in a private prosecution, it will contact the private prosecutor and ask for all relevant information about the prosecution.

The CPS will also ask the defendant to send a copy of any papers that have been served on them by the private prosecutor, as well as any other relevant information. If a complaint was made to the police, the CPS will also ask the police for any relevant information.

The CPS has to notify each of these parties that they have also written to the other parties. It should ask them to supply any information within 14 days and advise them that a decision to intervene will be based on the material they supply.

If the CPS learns of a private prosecution because of, for example, a press report and has not received a request to take it over, no action will generally be taken unless there are exceptional circumstances.

When will the CPS take over a prosecution?

The CPS will take over and continue a prosecution if the information it has acquired from the private prosecutor, defendant or police shows that:

• The evidence meets the standard of the Full Code Test, which is the test applied by prosecutors when deciding whether a case should be prosecuted.
• The case meets the Full Code Test’s requirement of being in the public interest.
• There is a particular need for the CPS to take over the prosecution. This may be because, for example, the offence is serious, it involves disclosure of highly sensitive material or there is a need for witness anonymity.

The CPS will only take over and continue a prosecution if all three of these requirements are met. If it does so, it should write to both the private prosecutor and the defendant to explain the reasons for its decision.

When will the CPS take over a private prosecution in order to stop it?

The CPS will take over a private prosecution and stop it if it does not meet either the evidence or public interest requirement of the Full Code Test.

It may also stop a private prosecution if allowing it to continue would be considered damaging to the interests of justice. This could be when:

• The private prosecution interferes with the investigation of another criminal offence.
• The private prosecution interferes with the prosecution of another criminal charge.
• The prosecution is being brought for malicious reasons.
• The police, CPS or other prosecuting authority has promised the defendant that they will not be prosecuted.
• The defendant has already received a caution for the offence that is the subject of the private prosecution.

If the CPS decides to take over a private prosecution in order to stop it, it should write to the private prosecutor explaining the reasons for the decision.

When will the CPS not take over a private prosecution?

The CPS will not take over a private prosecution case if the evidence and public interest requirements of the Full Code Test have been met, but there is no need for the CPS to take it over, either to stop it or continue with it.

The CPS, in most circumstances, will not take over a private prosecution because of misconduct by the private prosecutor or allegations of misconduct made against them.

It is for the courts to control private prosecutors rather than the CPS. But if a court or a defendant asks the CPS to take over the case because of misconduct by the private prosecutor, the CPS will review the case as already explained in this article.

Sources:

1. The Crown Prosecution Service - Legal Guidance - Private Prosecutions (Updated: October 2019).