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Private prosecutions used to be a rarity, but are now becoming increasingly more common and there has been a massive increase in the last five years, predominantly because of financial pressures on the justice system. There are concerns of a “two-tier” system of justice where those with private funding can prosecute a case that the State has decided not to pursue.

The statutory right to bring a private prosecution is valuable and many private prosecutions that are brought and properly managed. However, there are differences between private and State-brought prosecutions. In private prosecutions, the checks and balances are not necessarily as stringent in these cases, particularly in relation to disclosure and witnesses. Although the process is supposed to be the same for a private prosecution as for a State one, there are features unique to a private prosecution that a defendant may be able to challenge. Here, our criminal defence lawyers look what these challenges are.

Does the CPS have to be informed about a private prosecution?

Private prosecutions are not brought by the Crown or any other statutory prosecuting authority, for example, the Crown Prosecution Service (CPS), but can be brought by any individual or company under s6(1) Prosecution of Offences Act 1985. The way that a private prosecution is dealt with is the same as any other case; it is just that the State does not bring it.

The CPS does not have to be notified of a private prosecution by the private prosecutor. The CPS may find out about a private prosecution through other means, for example, if they are asked to take over the prosecution by either the private prosecutor or the defendant.

When can the CPS take over a private prosecution in order to stop it?

Under section 6(2) of the Prosecution of Offences Act 1985, the Director of Public Prosecutions (DPP) can take over private prosecution proceedings.

Full Code Test

For the DPP to decide whether or not to take over a case, it must apply the Full Code Test. There are two limbs to this test:

  • Evidential stage
  • Public interest stage

Evidential stage

The DPP will discontinue the case when the evidential test for the CPS Code for Crown Prosecutors is not met. The DPP will determine this if there is no realistic prospect that the defendant will be convicted. The DPP must consider the likelihood of conviction looking at all available evidence to the DPP, including other State investigations that were performed before these proceedings and the defence case.

Public interest stage

The circumstances in which the public interest test will not be satisfied are likely to be relatively narrow and are limited to specific circumstances; however, it is a stage that must be fulfilled. The CPS considers a fundamental stage in establishing the legitimacy of a prosecution. It reserves the right to dismiss a case if there are grounds to believe that the reason for prosecution is malicious in intent or can be viewed as a misuse of the judicial process.

The DPP can also take over a case in order to stop it where, for example, it interferes with an investigation or prosecution that already exists or where the prosecution is vexatious or malicious. The conduct of the private prosecutor is something that should be considered by the defence. For example, if other legal proceedings stated that no summons or arrest warrant should be issued, then the current proceedings could be in breach of these undertakings.

Abuse of process and disclosure obligations

It may also be possible to state that there has been an abuse of process where the private prosecutor’s conduct has been unfair or unconscionable. A significant issue with private prosecutions relates to disclosure. It is often the case that the person bringing the private prosecution also has the vital evidence to support the case and so can control what information is passed onto the defence team.

The defence team must ensure that the private prosecutor has complied with disclosure requirements, including its duty to obtain relevant material from third parties and the disclosure of unused material.

It may be the case that important documentation is not passed on if the person bringing the private prosecution is not being completely transparent. There is no one assigned to ensure that documentation and information on computers is correctly shared. It is therefore vital for anyone facing a private prosecution to alert their lawyers to any information that they believe to be in existence that is relevant but has not been disclosed. It is possible to apply to the courts to ensure that disclosure is carried out correctly and in full and if this is not followed, then the courts can be asked to stay the proceedings.

Witnesses

Another point that is typical with private prosecutions is that the person bringing the proceedings is likely to be the principal witness for the case. Their lawyer will have to handle the balancing act of thoroughly discussing the case with them in relation to the best tactics but avoid discussing certain issues relating to them being a witness, as would arise in a State prosecution, thus creating a complicated relationship.

Contact our Private Prosecution Defence Lawyers

If you are facing a private prosecution, then you need specialist legal advice to ensure the best outcome for your case. These are complicated cases that need to be handled carefully to ensure that you are not placed at an unfair advantage. Our expert team can guide and advise you to make sure that your rights are protected. Please contact our expert team of criminal defence lawyers via our online enquiry form or telephone us on 020 7387 2032.

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Celebrating 39 years of practice in 2021, we are leaders in criminal defence, serious fraud, serious crime and many other areas of legal practice. We have been involved in many leading cases over the last 35+ years and are well known for our genuinely high acquittal rate and overall success rate. Please click the Legal 500 logo below for more information about our rankings.

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Top Ranked Lawyers: Legal 500 

Celebrating 39 years of practice in 2021, we are leaders in criminal defence, serious fraud, serious crime and many other areas of legal practice. We have been involved in many leading cases over the last 35+ years and are well known for our genuinely high acquittal rate and overall success rate. Please click the Legal 500 logo below for more information about our rankings.

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