WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 20 2022
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Private prosecutions: an individual’s right

Private prosecutions: an individual’s right

It is a common misconception that only the Crown, government agencies and other public bodies can bring prosecutions.  Individuals also have the right to bring prosecutions privately when they have been the victim of crime.  This important right is contained within section 6 of the Prosecution of Offences Act 1985.  There are a wide range of offences available to someone who wants to initiate a private prosecution, however some offences require the permission of the Attorney General or the Director of Public Prosecutions (DPP) before proceedings can commence.

Lord Wilberforce in Gouriet v Union of Post Office Workers (1978) 3 All ER 70 [1977], stressed the importance of the right to bring private prosecutions:  ‘ The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences… remains a valuable constitutional safeguard against inertia or partiality on the part of authority”.

Private prosecutions are not a new concept – many companies already regularly bring private prosecutions, the most notable being the recent Virgin Media case where three men took part in a large-scale fraud selling set-top boxes which allowed people unlawful free access to Virgin Media’s  cable television channels.  The private prosecution brought by Virgin Media resulted in convictions for all three men.  The RSPCA frequently bring private prosecutions as do the BPI (the British Recorded Music Industry) and FACT (Federation against Copyright Theft).  The private prosecution brought by Stephen Lawrence’s family in 1996 against those suspected of murdering Stephen Lawrence was perhaps the most high profile private prosecution ever brought.

Private prosecutions are not just limited to companies.  If you have been the victim of crime you may feel, in these times of austerity, that traditional methods of redress are either not available to you or if you sought to commence civil proceedings instead, those proceedings would be prohibitively slow and costly. It may be that you feel that certain crimes are not the priority of the police or the Crown Prosecution Service at present. If that is the case, private prosecutions become very important to enabling individuals to act where necessary. Commencing a private prosecution allows a victim to retain control of the proceedings and to actively pursue a conviction against the accused. Sometimes, life-changing events occur which must be resolved, and a private prosecution is one way of doing this.

In order to bring a private prosecution, you can seek the advice of a lawyer who will tell you  whether there is sufficient evidence to launch a private prosecution.  If there is insufficient evidence available, you or your lawyer can utilise the services of a private investigator to obtain further evidence if necessary. It is, again, important to speak to a reputable investigator to ensure the evidence is not illegally obtained.  Once the evidence has been reviewed, and charges decided upon, a prosecution is commenced by ‘laying an information’ at a Magistrates Court. The ‘information’ provides details of the offence alleged and the relevant legislation which creates the offence.  The Magistrates court will then issue a summons, which is served on the accused, along with the date on which they must attend court for their first appearance to face the charges.

The Crown Prosecution Service (CPS) has the right to take over any private prosecution (under section 6(2) of the Prosecution of Offences Act) and either continue with the prosecution or discontinue it.  However, the CPS is only  likely to discontinue the case where there isn’t sufficient evidence to provide a realistic prospect of conviction or the CPS do not deem the prosecution to be in the public interest. For example, a prosecution is not in the public interest if it is likely to damage the interests of justice and if it is vexatious or malicious.  It is therefore very important that prior to commencing a private prosecution, the advice of a lawyer is sought, particularly the advice of an experienced criminal prosecutor. The Prosecutor should have experience in prosecutions and be familiar with the Code for Crown Prosecutors test applied by the CPS, to ensure that the case meets the Code test and to avoid the possibility that the CPS may discontinue the prosecution in the future.

No legal aid
It is important to note that there is no legal aid available for instituting a private prosecution therefore you must be prepared to fund a prosecution yourself. However, you can apply to get your costs back, including investigative costs at the end of the proceedings.  The court can make an order that either the accused pay the prosecutors costs or an order that the costs are paid out of central funds (state funds), irrespective of whether the accused is convicted or acquitted (unless the prosecution was instituted or continued without good case).

Before commencing a private prosecution, the most important thing is that you receive adequate legal advice on the prospects of a conviction, whether your case meets the test in the code for crown prosecutors, whether your require further evidence and if so what that evidence should be, and finally what charges are appropriate in your case.

Tamlyn Edmonds is a barrister and specialist prosecutor at Edmonds Marshall McMahon, a specialist law firm dedicated to private prosecutions.