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.
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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.
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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. In the UK, time limits for criminal prosecutions depend on the offence category. Summary offences generally must be prosecuted within 6 months of the offence date, as per section 127 of the Magistrates’ Courts Act 1980. However, indictable-only and either-way offences (which can be tried in the Crown Court) have no statutory time limits, allowing prosecutions years later. For summary offences, the limit is generally 6 months save for certain specific offences such as s127 Communications Act 2003. 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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Our expert lawyers are often instructed to advise clients on the most complex areas of law both in the civil arena when freezing injunctions, restraint orders or search warrants have been obtained, or in the traditional criminal arena for privately prosecuting offences such as fraud, money laundering, harassment, serious crime and more.
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Private Prosecution FAQs
What is a private prosecution?
A private prosecution is a criminal case initiated by an individual or entity, rather than the police or Crown Prosecution Service (CPS). This allows victims or organisations to seek justice when public authorities decline to prosecute, often providing a faster and more controlled route to criminal sanctions.
Who can bring a private prosecution?
Any individual or company can bring a private prosecution. Contrary to common belief, this right is not reserved for police or government agencies. Commercial organisations, charities, and even individuals frequently use private prosecutions to address offences ranging from fraud to intellectual property theft.
What types of offences can be prosecuted privately?
Most criminal offences can be subject to private prosecution, including fraud, theft, assault, harassment, perverting the course of justice, and even serious crimes like manslaughter. However, some offences are restricted by statute or policy, so legal advice is essential before proceeding.
Why choose a private prosecution over civil litigation?
Private prosecutions can offer swifter justice, access to criminal penalties such as imprisonment or unlimited fines, and may be more cost-effective than civil litigation. They also allow victims to take control of proceedings, which can be crucial when public authorities lack resources or decline to act. For complex disputes involving fraud, our fraud solicitors can advise on the best approach.
Are there time limits for bringing a private prosecution?
For summary offences, proceedings must generally be started within six months of the alleged offence. For either-way or indictable offences, there is no statutory time limit, allowing for historic cases to be prosecuted. Some specific statutes, like the Communications Act 2003, may have extended limits.
Can a private prosecutor recover their costs?
Yes, the court can order the defendant to pay the prosecutor’s costs if convicted. In some cases, costs may be recoverable from central funds, even if the prosecution is unsuccessful, subject to the court’s discretion. For more on recovering costs or enforcing compensation orders, see our enforcement and asset recovery services.
What are the risks of bringing a private prosecution?
Private prosecutions are subject to rigorous scrutiny, and the Director of Public Prosecutions (DPP) can take over or discontinue proceedings at any stage. If a prosecution is poorly advised or fails, there is a risk of adverse costs orders. If you believe you have been negligently advised to commence a private prosecution, our professional negligence team can help assess your claim.
How does the court assess whether a private prosecution should proceed?
Private prosecutors must meet the same evidential and public interest standards as the CPS, known as the Full Code Test. This means there must be sufficient evidence for a realistic prospect of conviction, and it must be in the public interest to prosecute. Our private prosecution experts can help you assess the merits of your case.
Can private prosecutions be used in corporate disputes or insolvency matters?
Yes, private prosecutions are increasingly used by companies to tackle fraud, intellectual property theft, and economic crime. In insolvency scenarios, private prosecution can be a powerful tool for creditors seeking justice against directors or individuals involved in fraudulent trading. For specialist advice, visit our insolvency and winding up petition team.
What is the process for commencing a private prosecution?
The process begins with gathering evidence and laying information before a magistrates’ court. It is crucial that all evidence is robust and the case is thoroughly prepared. Our private prosecution lawyers provide comprehensive case analysis and strategic advice from the outset.
What happens if the DPP takes over my private prosecution?
The DPP has the authority to take over any private prosecution and may choose to continue or discontinue it. This typically occurs if the case does not meet the Full Code Test or is not in the public interest. Our team can advise on strategies to minimise the risk of intervention and ensure your case is as strong as possible.
Can private prosecutions result in asset freezing or confiscation?
Yes, private prosecutors can apply for restraint orders to freeze assets and, upon conviction, seek confiscation or compensation orders. This can be particularly effective for victims of financial crime. For complex financial crime and asset recovery, see our money laundering and POCA specialists.
Are there alternatives if a private prosecution is not viable?
If a private prosecution is not the best route, civil litigation may be more appropriate. Our litigation solicitors can advise on all available options, including injunctions, asset tracing, and settlement negotiations.
What should I do if I have been advised to start a private prosecution and it failed?
If you suffered loss due to negligent legal advice or improper conduct by your solicitor, you may have grounds for a professional negligence claim. Our professional negligence solicitors specialise in claims arising from failed private prosecutions and can guide you through the process.
How does R v Zinga shape judicial scrutiny of private prosecutions?
The R v Zinga precedent ([2014] EWCA Crim 52) confirmed private prosecutors’ ability to pursue confiscation orders under the Proceeds of Crime Act 2002 (POCA), even in complex fraud cases. Courts now rigorously assess whether private prosecutions meet the “public interest” threshold, particularly when overlapping with civil recovery strategies. This case underscores the need for evidentiary rigour, especially when targeting offshore assets through cross-jurisdictional freezing orders or Norwich Pharmacal disclosures.
What strategies apply to cross-jurisdictional fraud involving offshore assets?
Private prosecutors increasingly combine freezing orders under POCA with insolvency proceedings to immobilise offshore assets pre-trial. Recent developments under the UK’s 2025 Crime and Policing Bill enhance powers to trace and seize cryptocurrency holdings, even when routed through shell companies. Coordination with forensic accountants and overseas regulators is critical to navigate conflicting jurisdictional regimes.
When should private prosecutions align with winding-up petitions?
In corporate fraud cases, simultaneous winding-up petitions and private prosecutions can pressure defendants into settlement by threatening director disqualification under the Company Directors Disqualification Act 1986. This dual approach is particularly effective against asset-dissipating entities, as courts may prioritise creditor protection via insolvency mechanisms while criminal proceedings advance.
How do HMRC-related fraud cases intersect with tax dispute resolution?
Prosecutors pursuing VAT or duty fraud must coordinate with tax dispute specialists to address potential double jeopardy risks. Compensation orders obtained via private prosecution may trigger income tax liabilities under the Income Tax Act 2007, requiring advance structuring to mitigate adverse fiscal consequences for victims.
Can confiscation orders penetrate shell company structures?
Enforcement receivers appointed under POCA routinely unravel layered corporate veils to access hidden assets. The 2025 Crime and Policing Bill empowers courts to disregard nominal ownership in shell companies, treating beneficial interests as recoverable property. Proactive asset recovery strategies often involve pre-emptive restraint orders to prevent asset dissipation during appeals.
What novel challenges arise in cryptocurrency asset recovery?
The 2025 legislative reforms permit the Crown Court to destroy or repatriate illicit crypto holdings, using blockchain forensic tools to trace transactions across decentralised exchanges. Prosecutors must secure expert validation of wallet ownership chains to satisfy the “market value” criteria under updated confiscation order guidelines.
What judicial review risks exist if the DPP intervenes?
Defendants increasingly challenge DPP discontinuations via judicial review, arguing irrational application of the Full Code Test (Gujra [2012] UKSC 52). Prosecutors must pre-emptively document public interest rationales, particularly in cases involving tax dispute overlaps, to withstand scrutiny under Wednesbury unreasonableness standards.
How can adverse costs orders be mitigated?
Pre-action protocols mandating early case reviews by independent counsel reduce risks of non-recoverable costs. Prosecutors should also seek preliminary rulings on evidence admissibility to avoid later allegations of negligent investigation, which could trigger professional negligence claims.
How does private prosecution evidence support director disqualification?
Convictions secured through private prosecutions provide prima facie evidence of unfitness under the Company Directors Disqualification Act 1986. Prosecutors often collaborate with insolvency practitioners to fast-track disqualification proceedings, leveraging criminal findings to bypass civil evidentiary hearings.
Do compensation orders under POCA carry tax implications?
Yes, compensation awarded via POCA may constitute taxable income under the Income Tax Act 2007 if structured as recurring payments. Proactive engagement with tax dispute resolution teams ensures compliance with HMRC reporting obligations while maximising victim recovery.
What liability risks arise in complex financial prosecutions?
Solicitors advising on private prosecutions face potential negligence claims if they fail to meet the Full Code Test standards (R v Galbraith [1981] 1 WLR 1039). Recent PNLA guidance emphasises dual-track risk assessments, evaluating whether civil remedies or director disqualification might yield preferable outcomes.
Can negligent investigation claims derail private prosecutions?
Defendants increasingly counterclaim for malicious prosecution or negligent investigation, particularly where forensic methodologies deviate from Financial Conduct Authority standards. Prosecutors should engage specialist negligence counsel pre-emptively to audit evidence chains and compliance with PACE guidelines. For bespoke strategies on integrating private prosecutions with insolvency, tax, or professional negligence matters, consult our cross-practice team.
How do I book a consultation with LEXLAW?
To discuss your case, you can book an initial fixed-fee consultation with our private prosecution lawyers. Our team will review your case in detail and provide strategic advice tailored to your circumstances. For further information on private prosecutions, asset recovery, insolvency, tax disputes, or professional negligence, explore our full range of legal services.