Author: Nicola Sharp
28 July 2020
5 min read
Rahman Ravelli outlines what is involved in commencing a private prosecution.
The private prosecution process begins with the laying of an information – also referred to as applying for a summons – which is an act carried out by the person or organisation bringing the prosecution. This is the first step that needs to be taken by an individual or corporate that sees a private prosecution as the best option available to them.
An information is the statement that informs a magistrate of the offence. It is created to initiate the criminal proceedings. It cannot be laid by an unincorporated association (Rubin v DPP, 89 Cr. App. R. 44, DC) and, ideally, it should be laid by an individual (R. v Ealing Justices Ex p. Dixon  2 Q.B. 91, DC). 5. An information is considered to be laid when it is received at the office of the clerk to the relevant justices (R. v Manchester Stipendiary Magistrate Ex p. Hill, 75 Cr. App. R. 346, HL).
For summary offences - less serious cases that are usually disposed of in a magistrates court, such as motoring offences or minor assaults - the laying of information must be done within six months of the date the alleged offence was committed.
Anyone wanting to bring a private prosecution does not have to have already brought the matter to the attention of the police, although there may be costs consequences for a failure to initially report the matter to the police. But if the Crown Prosecution Service (CPS) is already in the process of considering bringing certain charges, the magistrate should take time before issuing a summons for a more serious charge following an application by someone looking to bring a private prosecution (a private prosecutor). If this was to happen, it is possible the Director of Public Prosecutions may take over the private prosecution (R v Tower Bridge Metropolitan Stipendiary Magistrate Ex Parte Chaudhry  99 Cr App R 170).
Once an information has been laid the court will decide whether or not to issue a summons, in accordance with section 1 Magistrates’ Court Act 1980. The Criminal Procedure Rules 2015 (amended in 2018 and 2019) set out the relevant rules.
Crim PR 7. Crim PR 7(6) state that an application for a summons should:
Paragraph 22 of the judgement in R (Kay and another) v Leeds Magistrates’ Court  2 Cr App R 27 details what the court has to consider when deciding whether to issue a summons. These considerations are:
If these considerations are satisfied, the magistrate should issue the summons, unless there are genuine reasons not to do so. This could be because the application is vexatious, an abuse of process or otherwise improper. The magistrate is not obliged to make enquiries but can do so if it is thought necessary. It is at the magistrate’s discretion whether they notify the proposed defendant of the application and hear the proposed defendant before making the decision regarding granting the summons.
The case of Kay came after R (DPP) v Sunderland MC  EWHC 613 (Admin), in which the court said the magistrate had to “come to a judicial conclusion on whether or not to issue either or both summonses, and that required a review of whether there were prima facie evidence of the ingredients of the common law offence.’’ In R (Johnson) v City of Westminster Magistrates’ Court  EWHC 1709 (Admin) the Divisional Court stressed the need for “rigorous analysis” and did not accept that the threshold test for the issue of a summons was a low one.
Any individual that has a summons issued against them can apply to the Justices to dismiss it or stay it on the grounds that it was an abuse of the process for it to have been issued (R. v Bradford Justices Ex p. Sykes  Crim. L.R. 748).
Such an individual has no right to be heard at the application for a summons. But the private prosecutor does have a duty to the court to provide “full and frank disclosure’’ when making the application. This duty means the private prosecutor should not mislead the court in any way: they are obliged to disclose to the court any material which may hamper their case, prevent a summons being issued or which “may be relevant to the judge’s decision, including any matters which indicate that the issue might be inappropriate” (R (Kay and another) v Leeds Magistrates’ Court). This applies to issues of fact and law.
It should be emphasised that private prosecutors only get one opportunity. It has been considered doubtful that it would be proper for justices to consider a second application for a summons that uses exactly the same material as the first application that was considered by other justices of the same bench (R. v Worthing Justices Ex p. Norvell  1 W.L.R. 413, D.C).
Sometimes private prosecutions are brought when there are ulterior motives and the desire to see justice done is not the main motivation of the individual bringing the prosecution.
In R v Bow Street MSM, ex p South Coast Shipping Co Ltd  QB 645 it was held that if there was an indirect or improper motive for a private prosecution being brought this did not necessarily impair the legal validity of the prosecution and the court would be slow to halt a prosecution in such a situation unless the conduct was truly oppressive. This was followed in Dacre v City of Westminster Magistrates Court  1 WLR 2241, which developed the idea that mixed motives for bringing a private prosecution were permissible. It is, therefore, permissible to have parallel criminal and civil proceedings ongoing, as long as to do so is fair and proportionate and the decision is not based solely on an improper motive.
In D Limited v A and Others  EWCA Crim 1172, the Court of Appeal considered a private prosecution for fraud brought by a company against its former chief executive, his family and his associates. The company appealed a terminating ruling that had stayed the private prosecution. The proposed defendants had succeeded in staying the proceedings having relied on criticism of the motives and conduct of the applicant.
But the Court of Appeal noted that the applicant not only had the statutory right to bring the private prosecution but had only done so after the police and the Serious Fraud Office had not wanted to make further investigations. It observed that mixed motives may often be present in many prosecutions. In this case, the Court of Appeal emphasised that why an applicant initiated a private prosecution is distinct from the issue of how they are conducting it. The main motive in this case, which was seeking retribution from defendants that the applicant believed had been engaged in fraud, was not improper. And, according to the court, the punishment of alleged criminality was an aspect of the pursuit of justice – which was itself a logical basis for the statutory right to bring a private prosecution.
In reversing the original decision, the Court of Appeal emphasised that ‘’mixed motives do not of themselves necessarily vitiate the prosecution.’’
It is important, therefore, that anyone considering bringing a private prosecution is aware of all aspects of the process and the case law that has developed around it.
This article was also featured on Lexology.com.
Nicola is known for her fraud, civil recovery, arbitration and business crime expertise, her experience of leading the largest financial disputes and multinational investigations and her skills in devising preventative measures and conducting internal investigations for corporates.