Elon Musk has recently and very publicly offered to fund a private criminal prosecution in the UK against UK police officers in relation to a tragic case involving the death of a young man.
Elon Musk isn’t a UK citizen. He’s not the victim of any crime in the UK. He is utterly unconnected with the recent tragic events he’s taken a stand on in the UK. However, he’s openly discussing bringing sophisticated legal proceedings to address a crime and policing issue in the UK. Can Elon Musk enforce (or force) justice by bringing a private prosecution in the UK?
The closest relationship Musk has to these events is as “a concerned global citizen.”
Providing his motive for bringing a private prosecution is assessed as “proper”[1], Elon can bring (or fund) a private prosecution against almost any citizen of the UK. Private prosecutions can ultimately result in any sanction the criminal court sees fit, including a lengthy prison sentence. It’s a powerful avenue to justice, so the use of it must be carefully considered by those who wield it.
Why is Elon Musk getting involved?
Elon Musk is no stranger to politics in the US and the UK. He was formerly held a Senior Government Advisor and the de-facto head of the Department of Government Efficiency (DOGE) in the Trump administration from January to May 2025. However, his recent interest in social affairs, crime and policing in the UK is notably outside his typical realm of commercial, fiscal and censorship commentary.
Musk has over 240 million followers on X. He has used that platform to make some fairly explosive comments about the UK. These have included claiming that Prime Minister Keir Starmer was “deeply complicit” in failures connected to grooming-gang prosecutions and calling the UK’s former Parliamentary Under-Secretary of State for Safeguarding, Jess Phillips, a “rape genocide apologist” who should be imprisoned. He has asked whether America should “liberate the people of Britain from their tyrannical government” and called for a change of Government.
Agree or disagree, Musk is clearly a disruptor and a view-maker. The perennial question remains: Do all systems require a level of disruption for optimal efficacy?
Why do Private Prosecutions exist in the UK?
Private prosecutions exist to bring justice to victims where the state has failed them. In the case of private prosecutions, instead of trial by tweet, one of the most revered justice systems in the world, adjudicated by 12 UK citizens, decides on the verdict.
Although they are unavailable in most parts of the world (Musk would not have access to a private prosecution for police failings in the US, for example), they are considered an important institutional safeguard in the UK and are enshrined in s 6(1) of the Prosecution of Offences Act 1985.
If police, prosecutors, or government authorities are unwilling to enforce the law because of budget, apathy, incompetence, bias or improper conduct, there is a remedy available for citizens of the world.
This is invaluable in two ways. First, it enables individuals to obtain justice if they are failed by the state. Secondly, it holds power to account, as the press often does.
One such private prosecution was brought by Baroness Lawrence of Clarendon (formerly Doreen Lawrence). It was commenced because the CPS declined to prosecute the race related death of her student son, Stephen Lawrence. In 1993, he was stabbed to death in a racially motivated, unprovoked attack in southeast London. Although unsuccessful, the case demonstrated that private prosecutions serve as a mechanism for victims and their families to challenge failures of the state and maintain accountability. The case exposed severe systemic failures in the criminal justice system and ultimately forced a legal reclassification of police racism in the Met.
Legal ruminations on the importance of Private Prosecutions
In Gouriet v Union of Post Office Workers[2], Lord Wilberforce emphasised that the right of a private citizen to bring a private prosecution is an important constitutional protection when public authorities fail to act.
“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, and …remains a valuable constitutional safeguard against inertia or partiality on the part of authority.”
In her judgment in the case of Gujra v. CPS[3] Baroness Hale made the point that the centuries-old right to bring a private prosecution was of “fundamental importance” to victims of crime, particularly to:
“those most vulnerable victims, those who have traditionally had such difficulty in getting their voices heard or, if heard, believed.”
She considered that “the right of access to a court to prosecute an alleged offender is as much a constitutional right as a right of access to a court to bring a civil claim” and suggested that a restriction on the right to bring a private prosecution might involve a violation of a victim’s Article 8 rights.
Is it possible to bring a private prosecution against the police? What sort of offences are prosecutable where the police have failed?
Misconduct in public office is an age-old, common-law criminal offence in the UK targeting serious abuses of power or wilful neglect of duty by those holding public office. It is difficult to prosecute but carries severe penalties—including up to life imprisonment—if the behaviour amounts to an abuse of public trust.
The elements which must be satisfied are as follows:
- The defendant must hold public office including roles of police officer[4], government official and the judiciary;
- Acting in their capacity as a public officer;
- There must be wilful[5] neglect or misconduct;
- There must be a clear abuse of public trust and a complete departure from the proper standards expected of one in his or her office;
- There must be no reasonable excuse or justification fortheir conduct.
One of the ways in which misconduct can occur is where safety protocols are wilfully ignore which may lead to gross negligence or danger. However, mere negligence or even a serious mistake will not suffice[6]. The misconduct must be to a high standard in that it must amount to failing the public’s trust in the officer[7].
In R v L [2011] EWCA Crim 1259, a conviction for conspiracy to commit wilful misconduct in public office was upheld where a former police officer working in a civilian capacity had passed information to a member of the criminal fraternity.
However, in Attorney General’s Reference (No.3 of 2003) [2004] EWCA Crim 868, the death of C, who had died in police custody following a public order incident, was not misconduct. C’s breathing was audibly obstructed for 11 minutes before he died. During this period police officers took no action. The prosecution claimed that the officers had recklessly breached their duty of care to C. The officers were acquitted of manslaughter by gross negligence and misconduct in a public office.
In deciding whether conduct amounts to an offence, the likely consequences of the conduct, in the context of the nature of the office, and the responsibilities of the office and the office holder are relevant.[8]
In what sort of matter would a private prosecution of a police officer be appropriate?
The current Met police scandal regarding the Met’s treatment of victims of the late Mohammed Al Fayed who owned the store between 1985 and 2010, is likely to be investigated for offences of misconduct in public office. Although Al Fayed died in 2023, 154 victims have come forward, to the media, the Harrods Redress Scheme or to the Police.
It has been recently revealed that the Met was approached by 21 women from 2005 until 2023 who variously reported rape, sexual assault and trafficking. Al Fayed was never charged with any offences. Whilst reporting, victims were apparently told there were “piles” of other complaints[9].
Why did the Met not deal with these complaints?
John Macnamara, Al Fayed’s Head of Security, was formerly a serving Scotland Yard Fraud Squad Officer, for some 28 years. It is alleged that when complaints were made at the police station, Macnamara was contacted by the MET and would appear and enforce a statement retraction.
The Met’s relationship with Al Fayed was longstanding. Al Fayed donated cars with Harrods slogans to the Met. It is alleged that Macnamara sought favours from the Met for provision of information in exchange for Scotch and envelopes of cash. The Loftus report[10] (concerning another former security director) details bribery, wrongful arrests and senior police intervention.
A serving Met officer and four former officers have been referred to the Independent Office for Police Complaints (IOPC) for potential misconduct over the handling of complaints made against Al Fayed.
Are Private Prosecutions Important? Should Elon Musk be allowed to bring one in appropriate circumstances?
Yes and yes. Why? Holding power to account, when it won’t hold itself, should be the job of every citizen. Where there is concealed offending, where the course of justice is perverted and where those who should protect us fail, it rots the fabric of our local, national and global communities.
Private prosecutions are held to the same standard as public prosecutions: that of “beyond reasonable doubt”. They require significant and near irrefutable evidence. They must be properly brought.
However, where there is significant evidence, the existence of private prosecutions shows that there is a proper and public way to challenge power via an independent and impartial judicial system. In the UK, private prosecutions are viewed as the constitutional right of a citizen. It is a check and a balance and the power of such legal recourse cannot be underestimated.
Kate McMahon – Partner
Edmonds Marshall McMahon is the UK’s leading private prosecution firm and the only firm to be Tier 1 ranked in both Chambers & Partners & Legal 500. The firm specialises in services for victims including private prosecutions, asset recovery, civil fraud, corruption, insolvency, internal investigations and professional negligence.
[1] There will be an inevitable accusation that the prosecution is politically motivated or that Musk has an improper purpose. The court will assess whether his motive is “indirect” or “improper”. See, for example, R v Bow Street MSM, ex p South Coast Shipping Company Limited [1993] QB 645, R (Dacre) v City of Westminster Magistrates’ Court [2009] 1 WLR 2241 (para 28); R(G)-v-S & S, [2017] EWCA Crim 2119.
[2] [1977] EWCA Civ J0127-2
[3] [2012] UKSC 52
[4] Knox [2011] EWHC 1629 (Admin)
[5] Wilful means “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not”: Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868.
[6] Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868.
[7] R. v Dytham (Philip Thomas) [1979] Q.B. 722, [1979] 7 WLUK 148
[8] Shum Kwok Sher v HKSAR [2002] 5 HKCSAR 381 considered
[9] Why didn’t Al Fayed’s victims go to the police? They did
[10] ‘We uncovered rape claim against Fayed in the 90s – it took 27 years to reveal it’
