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To be effective, a private prosecution must be managed by lawyers with comprehensive knowledge of criminal law, strategic insight and substantial court experience. Done properly, it can be a powerful and efficient route to justice.
A private prosecution gives the prosecutor greater control over both the pace and direction of proceedings. Rather than waiting for public authorities to decide whether to investigate, you can take proactive steps to advance the case.
YouTubeUnder section 6(1) of the Prosecution of Offences Act 1985, any individual or company may institute criminal proceedings. Once commenced, a private prosecution proceeds in the same way as a prosecution brought by the Crown.
In some circumstances, a private prosecution can be swifter and more focused than a case brought by the police or a public enforcement agency such as the Serious Fraud Office (SFO) or National Crime Agency (NCA). It can be the logical alternative where authorities may decide they do not have the time, resources or specialist expertise to pursue the matter.
Private prosecutions are particularly relevant in cases involving fraud and financial misconduct, dishonesty offences, breach of trust within a workplace, or commercial wrongdoing involving companies, financial institutions or other organisations.
At Rahman Ravelli, our private prosecutions team is highly ranked in leading national and international legal directories for business crime. We expertly advise on whether a private prosecution is the right course of action and, where appropriate, build and execute a robust and strategically-sound case.
Bringing a private prosecution is a serious commitment. Our role is to ensure that commitment is justified and worthwhile.
Every case turns on its own facts. However, key advantages of privately prosecuting often include:
Speed: You are not dependent on the timetable of a public authority, which is often constrained by available resources; leading to protracted investigations before action is taken - if any is taken at all. Whilst best practice is to notify authorities of any criminal wrongdoing and the intent to pursue a private prosecution, once authorities are notified then proceedings can begin as soon as the evidential and public interest tests are met, often resulting in a faster initiation of the court process than public authorities would have achieved.
Priority: Law enforcement agencies must prioritise cases based on available resources. They may be either unable or unwilling to devote the time and resources to your case, particularly in circumstances of complex business / financial crime. A private prosecution ensures that your case receives dedicated attention and is treated as a priority.
Cost: Regardless of the outcome, it is often possible to apply to recover reasonable legal and investigation costs from central funds. Knowing that partial costs can be recovered at the conclusion of the private prosecution can make it an attractive option, particularly for businesses seeking accountability.
Strategic input: You retain significant input into the investigation and prosecution strategy and are not constrained by the approach or priorities of the police or any other agency.
Outcome: A conviction secured through a private prosecution carries the same weight and sentencing powers as one secured by the state.
Deterrence: A successful prosecution brought by an individual or entity can send a strong deterrent message to prevent attempts by others at similar wrongdoing in the future.
The prosecuting party initially funds the case. However, reasonable prosecution costs can often be recovered from central government funds. If the prosecution is successful, the court may order the defendant to pay prosecution costs. The court may also make compensation and confiscation orders to recover losses. Strategic advice at an early stage is essential to assess likely recoverability and proportionality.
In some cases, it is appropriate to pursue criminal and civil proceedings simultaneously. At Rahman Ravelli, we are adept at managing all aspects of both civil and criminal litigation and are well-placed to advise on whether a private prosecution (criminal proceedings), civil litigation for recovery, or a coordinated combination of both will best protect your interests. Our teams have the necessary capabilities to meet all of your needs in both the criminal and civil arenas.
The Crown Prosecution Service (CPS) has the power to take over a private prosecution at any stage. It may do so at the request of the defendant or on its own initiative.
If the CPS concludes there are insufficient grounds to provide a reasonable prospect of conviction, it can take over and discontinue the proceedings. This power was confirmed by the Supreme Court in R (Gujra) v CPS [2012], which held that the Director of Public Prosecutions (DPP) may lawfully take over and discontinue a private prosecution without undermining the statutory right to bring one.
The CPS may also discontinue a case, even where the evidential test is met, if it considers that continuing would not be in the public interest. Examples include:
If a prosecution is taken over and discontinued, a review may be sought under the CPS Victims’ Right to Review Scheme, and in certain circumstances the decision may be challenged by judicial review.
There are a number of important issues to consider when bringing a private prosecution. These can be critical to its success:
Disclosure
Private prosecutors must comply with the same disclosure obligations as public authorities would under the Criminal Procedure and Investigations Act 1996 (CPIA). This requires recording and retaining all relevant material gathered during the investigation, including material which does not form part of the prosecutor’s evidence in the case. ‘Relevant material’ is any material which could have a bearing on the case, including assisting the defence or undermining the prosecution. Such material must be reviewed and disclosed to the defence where required. Failure to comply can result in proceedings being stayed as an abuse of process. For this reason, it is vitally important to engage experienced legal advisors familiar with these complex rules of disclosure so that your case is not prematurely discontinued for disclosure failings that may have been avoidable with specialist legal advice.
Malicious or Vexatious Prosecution
A private prosecution must be brought for proper purposes and on a sound evidential basis. A defendant may allege that a prosecution was brought maliciously or without reasonable grounds. If proceedings are primarily motivated by malice or a collateral objective, such as gaining leverage in a commercial dispute or civil proceedings, the prosecutor risks both the case being halted and potential civil liability. While such claims of malicious prosecution are not easily established, they underline the importance of objective, well-documented decision-making and strict adherence to accepted prosecutorial standards.
The courts also retain an inherent power to prevent abuse of process. A defendant may apply to stay a private prosecution where it would be impossible to receive a fair trial – for example, due to serious disclosure failures (see above) or where continuing the proceedings would offend the court’s sense of justice, such as where they are oppressive or vexatious. These safeguards mean that careful preparation, analysis and strict procedural compliance are essential to ensure that a private prosecution is both appropriate and sustainable.
Jurisdiction
Courts in England and Wales generally have jurisdiction over offences committed within their territory. However, certain offences, such as fraud and other dishonesty offences, may be prosecuted here even where only part of the offending conduct occurred in England or Wales.
There are also statutory provisions allowing prosecution of certain serious offences, including offences subject to universal jurisdiction.
Commencing proceedings
A private prosecution begins by laying information before a magistrates’ court setting out the alleged offence and relevant legislation. The magistrates will consider whether the offence is within time, whether the court has jurisdiction, whether there is a good (prima facie) case, whether the Full Code Test has been considered and, on the face of it, met (see below), and whether the applicant (private prosecutor) has authority to prosecute. If satisfied, the court may issue a court summons to be served on the defendant(s) or, in appropriate cases, an arrest warrant (though it should be noted that it is incredibly rare for a private prosecutor to obtain an arrest warrant and such a warrant would be executed by the police, not the private prosecutor, in the usual way in such exceptional circumstances).
The burden of proof
As in all criminal proceedings, the burden is on the prosecution to prove each element of the offence beyond reasonable doubt.
The Full Code Test
It is widely accepted practice that private prosecutors will apply the Full Code Test contained in the CPS Code for Crown Prosecutors, which sets out the principles to be applied when deciding whether a case should be prosecuted.
This requires asking:
In every case, each question requires detailed and objective analysis to ensure these criteria are met.
Evidence
The strength of a private prosecution depends heavily on the quality of the evidence and the onus is on the prosecutor to properly obtain that evidence.
Whilst investigation and evidence gathering can, in theory, be carried out after the application for the summons has been made to the magistrates (above), it is best practice to prepare the case in adherence with the Full Code Test ahead of any such application. Careful and detailed preparation is therefore required by the private prosecutor and their legal team from an early stage.
Evidence may include witness statements, contracts, financial documentation such as bank statements, emails and electronic communications, and expert evidence such as forensic accounting analysis.
In some cases, specialist investigators may be instructed to trace witnesses or gather admissible evidence. Material may also be obtained from third parties, such as banks or public authorities, through appropriate court orders and statutory mechanisms. These can include applications under the Bankers' Books Evidence Act 1879 and other procedural routes and require careful reliance on relevant provisions of the Data Protection Act 2018 where applicable. Securing such material requires detailed knowledge of both statutory frameworks and the court’s powers to compel disclosure.
Applications may also be made for court orders compelling third parties to disclose information, including by way of Norwich Pharmacal orders (to obtain information from third parties mixed up in wrongdoing) and, once proceedings have commenced, witness summonses.
All material gathered must be properly reviewed, scheduled and retained for disclosure purposes. At Rahman Ravelli, we combine the use of technology and our analytical capabilities to review large volumes of material, whether it be mountains of paperwork, years of email communications or vast quantities of electronic data that could prove crucial to the success of a private prosecution. We ensure no stone is left unturned when building our client’s case.
In appropriate cases, asset tracing may be undertaken to identify the location and availability of assets.
Under sections 40 and 41 of the Proceeds of Crime Act 2002, the Crown Court may grant a restraint order to freeze assets where a criminal investigation has commenced and there is a risk of dissipation.
Such orders can preserve assets pending confiscation proceedings following conviction.
If the evidential and public interest tests are satisfied by the private prosecution team, an application for a summons will be prepared.
An evidential bundle, known as the Initial Details of the Prosecution Case (IDPC), must be served. This will not necessarily be the entire prosecution case file but will necessarily include a summary of the case and key evidence supporting the charges. It must contain sufficient detail to support the allegations asserted.
At an initial hearing, the court will determine venue allocation (magistrates’ court or Crown Court) of the case, based on the seriousness of the offence. If sent to the Crown Court, further hearings such as a Plea and Trial Preparation Hearing (PTPH) will follow.
Potential defence applications, such as to set aside the summons for abuse of process (as outlined above), must be anticipated and addressed strategically.
A properly planned and professionally conducted private prosecution can deliver accountability, recovery and deterrence.
It is a sophisticated legal process involving complex procedural, evidential and strategic considerations. Rahman Ravelli’s capability and achievement in serious and white-collar crime has been recognised worldwide. Our private prosecution team’s dedicated experience enables us to guide clients through every stage – ensuring that, if a private prosecution is brought, it is brought properly, robustly and with the best possible prospect of success and achieving justice.
