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Home » Professionals » Legal Guidance » P to R » Private Prosecutions

Private Prosecutions

Updated 30/04/08

Principle

Functions of the Director (Archbold 1 - 253)

The right to bring private prosecutions is preserved by Section 6(1) Prosecution of Offences Act, (POA) 1985. (Archbold 1 - 258)

The DPP has power under section 6(2) to take over private prosecutions. (Archbold 1 - 250) and (Archbold 1 - 258).

The decision to take over proceedings must be made by the CCP/London Sector Director.

The private prosecutor must seek consent of the Attorney General or DPP in those cases that require consent to prosecute.

Guidance

General

The CPS should only take over a private prosecution when there is a particular need to do so on behalf of the public. If that need does not arise the private prosecutor should be allowed to carry on with the case.

If the CPS takes over the private prosecution, the case must be reviewed in accordance with the Code. If the evidential and public interest tests are not met the prosecution will be stopped.

The private prosecutor is not under a duty to inform the CPS that a private prosecution has commenced. A prosecutor may therefore find out about a private prosecution in one of four ways. These are:

The private prosecutor, or their representative, asks the CPS to take over the prosecution;

  • Where the defendant, or his/her representative, asks the CPS to take over proceedings;
  • Where a justices' clerk refers a private prosecution to the CPS under section 7(4) of the POA 1985;
  • When the CPS learns of the private prosecution in another way, for example, a press report or a report from a judge.

When a private prosecutor, or their representative, asks CPS to take over the prosecution

The CPS should request the case papers from the defendant or their representative, if they did not accompany the original request for the CPS to take over the prosecution. It may also be necessary to make enquiries with the court, private prosecutor or police if more information is required. The case should be reviewed in accordance with the Code.

The CPS should take over and continue the prosecution if the Code tests are satisfied and

  • the case is one normally prosecuted by CPS after police investigation; and
  • there is a particular need to take over the prosecution on behalf of the public.

Discontinuing Proceedings

The CPS should also take over and discontinue proceedings if one or more of the following applies: -

  • There is no case to answer; or
  • Public interest factors against prosecution outweigh those in favour.

Examples include:

  • malicious prosecution including malicious or vexatious prosecutions within the meaning of Section 24 of the POA 1985;
  • a minor offence where the defendant is too ill to stand trial;
  • a serious offence where the defendant is terminally ill;
  • a stale minor offence;
  • an offence for which the defendant should have been cautioned;
  • the prosecution is likely to damage the interests of justice such as cases where the prosecution interferes with the investigation of another criminal offence or charge, or cases where the prosecution involves a possible disclosure of highly sensitive material, or where the CPS is aware of material which should be disclosed to the defendant and where the CPS cannot ensure that the material is disclosed;
  • cases where the Prosecuting Authorities have promised the defendant that he would not be prosecuted at all (a promise of a immunity from prosecution). However see Turner v DPP [1979] 68 Criminal Appeal Reports 17. This does not include cases where the Prosecuting Authorities had merely informed the defendant that they would not be bringing or continuing proceedings;
  • cases where the defendant has already been cautioned under section 22 of the Criminal Justice Act 2003 or has receive a simple caution under Home Office Cautioning Guidelines;

The test to be applied by the CPS in deciding whether to take over proceedings for the purpose of discontinuing them is not the same test to be applied when deciding whether to institute or continue prosecution. (Archbold 1 - 258).

The policy in intervening in private prosecutions when there is no case to answer or the public interest factors against the Prosecution outweigh those in favour is not unlawful; but should be applied to each charge individually. R v DPP Ex Parte Duckenfield; R v SAME Ex Parte Murray; R v South Yorkshire Police Authority and Another Ex Parte Chief Constable of South Yorkshire Police; [2000] 1 WLR 55; Raymond v Attorney General 1982 Queens Bench 839; 75 Criminal Appeal Reports 34.

When a justices' clerk refers a private prosecution to CPS under section 7(4) POA 1985

Section 7(4) POA 1985 (Archbold 1-260) imposes a duty on justices' clerks to refer cases in two situations:

  • When a private prosecutor withdraws a prosecution and there are grounds for suspecting that there is no satisfactory reason for this action. In such a situation the CPS should review matters in accordance with the Code and will only commence a new prosecution if the Code tests are met, and it is in accordance with the Attorney General's undertaking regarding the re-institution of proceedings. <Refer to Reinstitution of Proceedings elsewhere in this guidance >. A prosecution should not be commenced if the Code tests are not satisfied or the prosecution is clearly likely to damage the interests of justice; or
  • When a private prosecutor has not proceeded with a case within a reasonable time and there is no satisfactory reason for the delay. The CPS should take over and continue the prosecution if the Code tests are met, or the private prosecutor seems unable or unwilling to continue with the case and it is not in the interests of justice to let the case go by default.

When the CPS learns of a private prosecution in another way (for example a press report) or a report from a judge

In these circumstances CPS should make a request to be provided with a copy of the papers if, on the available information, there may be a need for the Service to take over the prosecution on behalf of the public.

< Refer to continuing/discontinuing of proceedings above in this section >.

Taking over proceedings after committal/sending

The fact that a case has been committed/sent for trial indicates an acceptance by the court that the prosecution has established a prima facie case. It can also give rise to a public expectation that the case will be pursued. In such circumstances the CPS should take over proceedings if requested to do so by the private prosecutor, but discontinue the matter if the either of the two stages under the Code's test are not met.

If a case is difficult or complex, the public interest may require CPS to take over and continue with the prosecution regardless of the wishes of the private prosecutor.

When a case has been taken over after committal/sending (with a view to the case proceeding) and either the evidence or the public interest factors subsequently change so that one or other of the Code tests is not met, the case should be discontinued.

Appeals against conviction

The CPS will normally take over these proceedings, as generally it is in the public interest that the conviction is maintained. However the CPS will always take over and concede an appeal if: -

  • there is clearly no case to answer; or
  • the prosecution is likely to damage the interests of justice

The CPS will not take over an appeal against conviction if the prosecution fell far below the public interest test in the Code. To do so would mean that the CPS was seeking to uphold a conviction that should not have been obtained. However a prosecutor should not concede the appeal as the question of the public interest is not one that the appellate court can consider.

Appeals by the private prosecutor

The CPS should only take over the appeal if an important point of law is involved.

Police Officer Prosecutors

Where a private prosecution is commenced by a police officer as a victim < See discontinuing proceedings above in this section >.

If a Police Officer commences a private prosecution when he is not the victim, in order to challenge a police or a CPS decision, the CPS should normally take over the prosecution and review the case in accordance with the Code. If the prosecution does not meet the Code tests on review it will be discontinued.

The prosecutor must ensure that such a decision is taken in the full knowledge of all that has passed between the police and the defendant when the matter was originally investigated. For example, the prosecutor will need to know whether the police indicated to the defendant that there would be no prosecution.

Re-institution of Proceedings

The Attorney General's undertaking regarding the re-institution of proceedings does not apply to private prosecutors who are therefore able to start a private prosecution after a decision by the CPS or the Police not to prosecute. <Refer to Reinstitution of Proceedings elsewhere in this guidance>.

In the following three types of cases, the CPS will take over a private prosecution and apply the re-institution guidelines and the Code tests: -

  • Where a decision was taken by CPS to discontinue proceedings, and a subsequent review of papers (with or without fresh evidence) leads to the conclusion that there is a realistic prospect of a conviction;
  • When the defendant was wrongly cautioned in that the cautioning criteria was not met, or the decision to caution was one that no reasonable person could have taken; and
  • When defendant was cautioned and the caution was given on false information about the offence, or the defendant, which was provided or procured by the defendant.

DPP Consent Cases

For some offences a private prosecutor would need the consent of the DPP [or the Attorney General] < See Consents to Prosecute elsewhere in this guidance >. If the prosecution passes both Code tests then the CPS should take over prosecution. If it does not, consent to prosecute should not be given.

CPS Disclosure of Material to Third Parties

The right to bring a private prosecution does not confer a right of access to the statements photographs or reports held by the CPS. (R -v- DPP ex parte Hallas [1988] 87 Criminal Appeal 340)

Those who provide material for the CPS are entitled to confidentiality in respect of such material, as it is not in the public domain. Taylor & Another v Director of the Serious Fraud Office and Others 1999 2 Appeal Court 177 HL.

The general rule is that the CPS should give disclosure whenever it is in the interests of justice to do so. However you should consider the principles set out in The Disclosure Manual when considering voluntary disclosure of documents and information held by the CPS (e.g. the names and addresses of witnesses).

Any voluntary disclosure should be even handed between the parties and therefore any documents supplied to the Private Prosecutor should also be supplied to the defendant and vice versa.

In relation to the CPS providing witness statements and reason for decisions <see Requests for witness statements from CPS staff, elsewhere in this guidance >.

Summonses for material held by the CPS

After committal, the Crown Court may grant a private prosecutor a witness summons to obtain material from the police to enable the prosecutor to comply with disclosure obligation to the defence. (Archbold 8-2 to 8-3). (R -v- Gregory Pawsey [1989] Criminal LR 152).

There is no reason in principle why such a summons should not be granted after committal or transfer in respect of material held by the CPS. There is no reason why a Magistrates' Court should not grant a witness summons to secure the production of material relevant to summary trial.

If the CPS does not possess either the originals or copies of the documents requested then the CPS' duty is simply to refer the inquirer to the person who does.<see Disclosure of Material to Third Parties, elsewhere in this guidance>

Prosecutors Duty to Disclose Unused Material

If the CPS takes over a private prosecution the usual disclosure rules apply <see The Disclosure Manual>.

Difficulties may arise where the CPS has not taken over a private prosecution but is aware of the private prosecution, and is also aware that material evidence or information exists but the private prosecutor does not possess it. The CPS may not be able to disclose this information - either because the CPS is not in possession of it, or because there are rules, for example the rules of public interest immunity that prevent disclosure. If the CPS is, or can be, in possession of the material you must do one of two things:-

  • notify the prosecutor and the defendant of the existence of material and supply it on request if it is right to do so; or
  • if the material is too sensitive for the first course of action then the CPS must take over the private prosecution. In such cases CPS must review the case in accordance with the Code and in light of the disclosure problem.

In any case in which you are aware of unused material, which has not been disclosed to the defendant, and which you cannot ensure is disclosed, and which would tend to exonerate or materially assist the defence, the CPS must take over the prosecution. The case must then be reviewed in accordance with the Code.

Misconduct by the Private Prosecutor

On occasions when you examine papers in order to decide whether to take over the prosecution, and you decide to allow the private prosecution to continue, you may come across misconduct by the private prosecutor. An example would be a failure by the private prosecutor to disclose relevant unused material in his possession to the defendant. In such a case you should remind the private prosecutor of their disclosure obligation. If you cannot be satisfied that the private prosecutor has made proper disclosure you must inform the defendant of the failure. This will enable the defendant to secure disclosure through an order of the court.

In general the CPS will not take over a private prosecution because of misconduct or alleged misconduct by the private prosecutor. If the court or the defendant ask the CPS to take over the prosecution you should examine the case to see whether it falls within one of the categories that would allow this course of action.

Application for a Summons by a Private Prosecutor

When a private prosecutor requests that a summons is issued, the court may take into account the prospect that the DPP may take over a prosecution under section 6(2). (R v Tower Bridge Metropolitan Stipendiary Magistrate Ex Parte Chaudhry 1994 Queens Bench 340; 99 Criminal Appeal Reports 170). If there is a request for a summons by the private prosecutor when CPS has already laid informations, - see (Archbold 1-259).

Procedure

If it appears that the case might be one that the CPS should take over, you should ask the private prosecutor to pass the evidence and documents to you so that you can decide whether the prosecution should be taken over. You should also ask the police for any information or evidence that they may have.

If the private prosecutor refuses to hand over the papers you will not be able to compel them to do so unless the CPS takes over the prosecution.

If there is not sufficient information on the papers for the CPS to decide whether or not to take over the prosecution you may ask the police to further investigate if necessary