Who can bring a Private Prosecution?

It’s 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’ve 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).  In April 2024, a police officer who, in 1984, held the hand of his dying colleague (PC Yvonne Fletcher), after she was shot, launched a private prosecution of one of the Libyan suspects.  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.

Why bring a private prosecution?

Private prosecutions are not just limited to companies.  If you’ve 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.

How to bring a private prosecution?

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.

Is legal aid available for private prosecutions?

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).

What to consider 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.

What is the UK’s biggest ever private prosecution?

In 2016, Tamlyn Edmonds, barrister and specialist prosecutor at Edmonds Marshall McMahon, achieved what is believed to be the biggest-ever private prosecution brought by an individual.  The case of R v Somaia (2016), saw the largest confiscation order (£21 million) ever to be awarded in a private prosecution.

How can Edmonds Marshall McMahon help with your private prosecution?

We offer a bespoke legal service to all our clients, which is entirely solutions orientated. Our first step is to analyse the problem or offending that you or your company wish to remove or prosecute. With our combined experience of all types of complex fraud, crime and offending, you can be reassured that we will understand your needs. We’ll then present you with the best options and strategies to achieve your desired outcome, in the shortest timeframe.  We have experience in achieving successful prosecutions within 3 month’s of being instructed.

We’re able to solve most legal challenges, given our experience and expertise across a myriad of legal services. and specialisms. We also take the time to understand your specific needs, to ensure you receive a personalised legal service, intended to get the best results and facilitate a swift and robust prosecution.

We don’t believe in a ‘one size fits all’ approach, preferring to use our extensive experience and expertise in criminal law to achieve the most effective solution for your particular legal issue.

We strive to provide an outstanding service and we pride ourselves on our flexibility and commitment to successful outcomes.

Contact us on 020 7583 8392, or email us at enquiries@emmlegal.com.