Private prosecutions are prosecutions for a criminal offence initiated by a private citizen or entity which is not acting on behalf of the police or any prosecuting authority. A private prosecution is essentially the same as a standard criminal trial but one which is not brought by the CPS.
We are the only boutique UK law firm that specialises in all aspects of private prosecution and related corporate criminal investigations. Few legal firms operating in the UK have our level of expertise in Private Prosecution advice and strategy. We are the only expert law practice specialising in private prosecution that incorporates both solicitors and barristers.
Our specialist Private Prosecution Solicitors and Barristers deliver expert technical knowledge, the utmost expertise, top state prosecution contacts, strong negotiations skills and respected advice, which can make a pronounced difference in criminal or civil proceedings and subsequent tracing, compensation, confiscation, custodial penalties or enforcement.
Why commence a private prosecution?
To get justice for criminal offences committed against individuals or corporations that have not been taken on by the police or CPS. The media have reported that private prosecutions are on the increase due to police and CPS budget cuts which has limited the ability of the enforcement agencies to investigate and prosecute crime effectively. These cuts have created a trend amongst individuals to fund their own criminal actions due to a failure of the police to investigate or the CPS’s unwillingness to press ahead to trial.
If a certain offence is not the priority of the CPS, then private prosecutions are a necessary tool allowing a victim to take control of proceedings and actively pursue a conviction against the accused.
Some individuals feel that civil proceedings may be prohibitively slow and a private prosecution would offer a speedier resolution. In addition, the civil damages awarded may not adequately compensate for the harm suffered whereas private prosecutions have the availability of tougher penalties which includes unlimited fines and imprisonment.
Many corporate entities have launched private prosecutions to protect their intellectual property, rather than leave their rights to be protected by public law enforcement agencies.
Victims of crimes consider starting a private prosecution for a number of reasons, for example:
- to deter future criminal conduct by the suspect;
- to send a clear message to potential fraudsters that a company that has been defrauded will take strong action;
- as a necessary tool when the public prosecution authorities are unwilling to act;
- potential compensation for the victim;
- to establish a precedent for future conduct;
- to protect society; and
- a private prosecutor can access specialist expertise which many public prosecuting authorities cannot utilise, which can increase the chances of prosecution.
Who can bring a private prosecution?
Any individual or company can bring a private prosecution. It is a misconception that only the police, CPS or government agency (such as the Director of the Serious Fraud Office) can bring a prosecution.
Traditionally, private prosecution actions were almost solely used by charitable or public interest bodies such as the RSPCA. Commercial organisations regularly undertake private prosecutions. This is undertaken by trade organisations such as FACT (Federation against Copyright Theft) and BPI (British Recorded Music Industry) but also ordinary commercial companies. Recently, section 6(1) has been increasingly used by individuals and commercial entities as an alternative to or alongside civil litigation.
Where is the legal right to bring a private prosecution?
The right to bring a private prosecution is enshrined in statute section 6(1) POA 1985:
“6 Prosecutions instituted and conducted otherwise than by the Service.
(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.
(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”
However, this right is subject to three limitations:
- All magistrates can exercise judicial discretion to refuse to issue the requisite warrant or summons;
- The DPP have the right under section 6(2) POA 1985 to take over or stop a private prosecution at any stage (see below); and
- The right to prosecute certain offences is restricted by legislation or policy.
Which offences can be privately prosecuted?
Subject to certain exceptions, private prosecutions can be brought for a wide range of offences where the CPS have not initiated criminal proceedings, including:
- Fraud: in circumstances where the CPS or SFO have made a decision not to prosecute. Private prosecutions have been brought for counterfeiting; protect commercial rights; contractual fraud; false representation; professional who have abused their position through money laundering, dishonesty and/or theft; insurance fraud; fraud internal within a company.
- Property disputes: false adverse possession claims
- Assault: sexual assault; domestic violence; racially aggravated assault and violent assaults falling under section 39 Criminal Justice Act 1988 or s.47 Offences Against the Person Act
- Sexual offences: victims of date rape and non-consensual sexual offences.
- Harassment: victims accusing another of stalking
- Perverting the course of justice
- Blackmail
- Manslaughter/murder: the Stephen Lawrence case is an example of this.
What are the advantages of a private prosecution?
A private prosecution has advantages over a public prosecution:
- Individuals can bring a prosecution where the prosecuting authorities are unwilling. For example, where the CPS have a lack of resources or specialist expertise (e.g. a lack of specialist fraud officers). This point was noted by Lord Thomas CJ in R v Zinga [2014] EWCA Crim 52:
“At a time when the retrenchment of the state is evident in many areas, including the funding of the Crown Prosecution Service and the Serious Fraud Office, it seems inevitable that the number of private prosecutions will increase.”
R v Zinga [2014] EWCA Crim 52 (Lord Thomas CJ)
- A person can exercise greater control over the investigative procedure and subsequent prosecution. For instance, more resources or highly specialist investigators and lawyers can be employed which are not ordinarily provided for in a public prosecution. The private prosecutor can control the investigation rather than rely on the CPS or police.
- They offer a way to overcome issues that have precluded a person from making a civil claim. There are no limitation periods in criminal proceedings, unlike for civil proceedings. In addition, it may be easier to establish jurisdiction in the UK for a criminal matter instead of a civil case.
- Criminal trials can generally be brought faster court than civil proceedings as there are not as many pre-trial hearings.
- Criminal proceedings can be cheaper than the civil route alternative.
- Unlike with civil proceedings, a private prosecutor does not have to provide a security for costs to the defendant. If your case fails and the defendant is not prosecuted, you will generally not have to pay the successful party’s costs.
- Under s.18 Prosecution of Offences Act 1985, you can apply to the court to award costs against the defendant which have been incurred in the whole proceedings.
- In certain cases, a private prosecutor can apply for legal costs and the costs of an investigation from state funds
- A private prosecutor can apply for a Restraint Order, which freezes the defendants’ pre-charge assets.
- If a defendant is found to be guilty, a private prosecutor can apply for a Compensation Order under sections 130-133 Powers of Criminal Courts (Sentencing) Act 2000 or a Confiscation Order. Both a Compensation Order and a Confiscation Order can be enforced by a Court. If the defendant refuses to pay, then these Orders can be enforced which may ensure that the defendant gets sent to prison.
- Private prosecutions are a useful tool against economic crimes that have not been prioritised by the police or CPS.
- They act as a robust deterrent due to the sanctions that a Criminal Court can impose: criminal record, custodial sentence, Confiscation Order and can affect an individual’s right to be a director of a company.
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