Private Prosecutions

• Principle
• How the CPS may find out about a private prosecution
• When the CPS finds out about a Private Prosecution
• Notification to the Special Crime Division
• When to take over and continue with the prosecution
• When to take over a private prosecution in order to stop it
• When not to take over a private prosecution
• Taking over proceedings after allocation/sending
• Appeals
• Re-institution of Proceedings
• DPP Consent Cases
• CPS Disclosure of Material to Third Parties
• Summonses for material held by the CPS
• Prosecutor's Duty to Disclose Unused Material
• Misconduct by the Private Prosecutor
• Application for a Summons by a Private Prosecutor, where the CPS has already started proceedings
• Procedure

Principle

A private prosecution is a prosecution conducted by a private individual or entity, rather than a prosecuting authority with a statutory power to prosecute.

There are a number of organisations that regularly prosecute cases before the courts of England and Wales but they do so as private individuals, using the right of any individual to bring a private prosecution. One example is the RSPCA.

The right to bring private prosecutions is preserved by section 6(1) of the Prosecution of Offences Act (POA) 1985. There are, however, some limitations:

• the Director of Public Prosecutions (DPP) has power under section 6(2) POA 1985 to take over a private prosecution
• in some cases, the private prosecutor must seek the consent of the Attorney General or of the DPP before the commencement of proceedings.

Parliament, through the construction of section 6, has specifically allowed for private prosecutions to take place without any involvement by the CPS. The success of a private prosecution is no indication that the CPS ought to have prosecuted, precisely because Parliament has quite deliberately allowed for prosecutions to take place without CPS involvement or oversight.

However, there will be instances where it is appropriate for the CPS to exercise the Director's powers under section 6(2) POA 1985, either to allow the prosecution to continue, to take over and continue the prosecution, or to bring it to an end.

The key point is that when asked to do so, the CPS must make a decision on whether or not to take over a private prosecution. The decision whether or not to take over a private prosecution should be made by the reviewing lawyer, and a Chief Crown Prosecutor (CCP) (or Deputy CCP (DCCP)) or relevant Head of Casework Divisions (HoD) (or their Deputy) must confirm this policy has been followed and endorse/ratify that decision in writing.

The decision should be taken in accordance with the Full Code Test, as set out in the Code for Crown Prosecutors. This guidance does not provide a template for recording this decision, but it should clearly set out the reasons in respect of each offence as to whether the Full Code Test is met and whether the decision is to take over or not, and if so, whether to continue or discontinue (or contest or not for appeals). The approval of the CCP, DCCP or HoD must be recorded clearly.

Where the Full Code Test is met and the private prosecution requires extradition proceedings to the UK, the CPS will need to take over the prosecution. Further information can be found below, and prosecutors should follow the Prosecution Guidance on Extradition - to the UK.

This guidance does not apply to cases where the CPS is asked to take over a case being prosecuted by another prosecuting authority. See instead Relations with Other Prosecuting Agencies.

How the CPS may find out about a private prosecution

The private prosecutor is not under a duty to inform the CPS that a private prosecution has commenced. The CPS may therefore find out about a private prosecution in the following ways:

• where the private prosecutor, or a representative of the private prosecutor, asks the CPS to take over the prosecution;
• where the defendant, or a representative of the defendant, asks the CPS to take over the prosecution;
• where extradition is required and the Home Office (directly or indirectly) refers the private prosecutor, or a representative of the private prosecutor, to the CPS;
• where a justices’ clerk refers a private prosecution to the CPS under section 7(4) of the Prosecution of Offences Act 1985, because the prosecution has been withdrawn or unduly delayed and there does not appear to be any good reason for the withdrawal or the delay;
• where a judge sends a report to the CPS; or
• where the CPS learns of the private prosecution in another way, for example, from a press report.

When the CPS finds out about a Private Prosecution

Where the CPS receives a specific request to intervene in a private prosecution, the CPS should contact the private prosecutor and invite them to supply a copy of all of the evidence that they intend to use to support their prosecution. This should usually be within 14 days but the CPS may need to shorten or lengthen this depending on the circumstances. In complex cases, the CPS may ask for a case summary or similar document as an accompanying guide to the evidence. The CPS should also request any information which could reasonably be considered capable of undermining the prosecution case or that assists the defence case. The private prosecutor should also be asked for details of any report made to the police and the result of any police investigation.

The CPS should also separately contact the defendant to invite them to send to the CPS a copy of any evidence or unused material which have been served on them by the private prosecutor. This should usually be within 14 days but the CPS may need to shorten or lengthen this depending on the circumstances. The defendant should be invited further to provide any other information they are prepared to provide which may assist the CPS in the decision-making process. This may be information about their defence or about any relevant public interest considerations. The defendant is not obliged to provide anything to the CPS, but they should be given the opportunity to do so.

Additionally, if a complaint was made to the police, the police should be contacted and asked to provide any relevant information, such as the result of any investigation, a copy of any evidence, including any interview with the defendant or other suspects, and any unused material. The police should be asked to confirm if there is any material that could reasonably be considered capable of undermining the prosecution or assisting the defence case, and whether they are aware of relevant material in the possession of third parties or anything bearing upon the duty of disclosure.

The CPS should notify each party that they have written to the other party. The CPS should ask each of the parties, and the police, to supply any information within 14 days (which may be shortened or lengthened by the CPS having considered the full circumstances) and advise that a decision whether or not to take over the prosecution will be based on the material received.

Where the CPS learns of a private prosecution, for example through a press report, but has not received a request to take it over, no action will generally be taken unless there are exceptional circumstances. An example of exceptional circumstances would be where a private prosecution was commenced for perverting the course of justice in relation to a rape allegation. In such circumstances the procedure as outlined above would be followed.

Notification to the Special Crime Division

CPS prosecutors should inform the Special Crime Division (SCD) of any private prosecution that has been referred to the CPS, before a decision is communicated to any of the parties. SCD must be provided with the decision contained in the written review, along with the written approval of the CCP/DCCP. This will include details of the relevant CPS Area, the court centre concerned and the proposed course of action in the case.

SCD will not review the original decision but will provide an assurance role to help ensure that the decision(s) made by the reviewing lawyer is compliant with this guidance, including that the decision made was endorsed/ratified by the CCP/DCCP/HoD as required. SCD’s assurance role is important because decisions to take over or not to take over a private prosecution may be challenged in the courts. The records which capture the decision must be sufficient to allow the CPS to deal with a judicial review, should one be commenced.

To assist SCD with its function, the reviewing lawyer should send the following information:

• the CCP/DCCP/HoD’s endorsement/ratification statement of the decision made, and their confirmation that this guidance has been properly followed. The endorsement should include confirmation that the decision has been made in line with the Full Code Test, and the reasons in respect of each offence, as to whether the decision is to take over or not and if so, then whether to continue or discontinue (or contest or not for appeals);
• the timescales and broad chronology of the case, including its urgency with reasons for any delay (this does not need to be a lengthy document);
• summonses, charges or indictment(s);
• confirmation that the representations and evidence were requested from the parties;
• representations made by parties (if they have been received); and
• the charging decision, advice or review note as applicable.

If this information is not provided by the reviewing lawyer, SCD will not be able to assure compliance with the private prosecution policy and there may be delays in this process.

The CPS Area or Casework Division should only proceed with their proposed course of action once SCD has confirmed with the reviewing lawyer that this guidance has been applied. SCD’s role is to help ensure that this guidance has been properly followed and that the records which capture the decision are sufficient to allow the CPS to deal with a judicial review, should application for judicial review be made. In cases where there is an upcoming hearing, it may be necessary to suggest that an adjournment be sought to allow sufficient time to make a decision, specifying how long is needed in which to take the decision.

Where there is disagreement between the Area or Casework Division and the SCD regarding the way this guidance has been followed or in relation to the decision documents, the Head of SCCTD should be contacted to resolve matters with the relevant CCP or HoD.

When to take over and continue with the prosecution

The CPS should take over and continue with the prosecution if, and only if:

• both stages, evidential and public interest, of Full Code Test are met, and
• there is a particular need for the CPS to take over the prosecution.

The final consideration is designed to cover the situation where, for whatever reason, the investigative authorities with which the CPS usually deals have not brought the case to the CPS' attention and yet it is a case that merits the prosecution being conducted by a public prosecuting authority rather than by a private individual. This may be because, for example:

• the offence is serious, one that would usually be prosecuted by the CPS and there is a particular need for the CPS to take over the prosecution;
• there are detailed disclosure issues to resolve (see the section below on "Prosecutor's Duty to Disclose Unused Material");
• the prosecution requires consideration of the disclosure of highly sensitive material;
• the conduct of the prosecution involves particularly sensitive or complex applications for special measures or for witness anonymity; or
• extradition is required.

This list is not exhaustive. It is also necessary to consider whether or not the case is of a type that the CPS normally conducts following a police investigation. If it is not such a case, it is less likely that there would be a particular need for the CPS to take it over. 
All these and any other relevant factors must be weighed together in order to determine whether there is a particular need for the CPS to take over the prosecution. The existence of one factor does not necessarily mean that the prosecution must be taken over.

Where the offence relates to an alleged false claim of serious sexual assault or rape, the CPS should take over the case unless there are exceptional circumstances not to do so.

In cases where the CPS decides that taking over a private prosecution in order to continue with it is the appropriate course of action, then, unless there are exceptional circumstances, the CPS should write to both the private prosecutor and the defendant explaining the reasons for the decision.

Extradition

A private prosecutor cannot institute or conduct extradition proceedings. Therefore, in private prosecution cases where extradition is likely to be necessary the private prosecutor must refer the case to the CPS, whether or not they would have done so for any other reason. It is not possible for the CPS to take extradition proceedings without ‘fully’ taking over the prosecution. Therefore, even where the only reason for the request is the likely need for extradition, the process in this guidance must be followed in full. It follows that where the Full Code Test is not met the CPS may take over and end the prosecution, even though the request is only made because of the likely need for extradition.  Conversely, where the CPS decides to start extradition proceedings it must also take over the prosecution.

This can include circumstances where a private prosecution has progressed to trial, without prior CPS intervention, and where a defendant has been convicted in absence, and subsequent extradition proceedings are required.

For all matters relating to extradition proceedings, prosecutors should refer to the published Extradition guidance. Engagement with the CPS Extradition Unit should also take place including prior to making any decision to take over a prosecution where extradition to the UK is likely to be required.

Confiscation and Compensation

The case of R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 52 confirmed that a private prosecutor could institute confiscation proceedings by inviting the court to proceed under section 6 of the Proceeds of Crime Act 2002 (POCA).

The Court also confirmed that the Director may use the power under section 6(2) POA 1985 to take over a private prosecution when the court asks for assistance from the CPS in dealing with confiscation proceedings that involve compensation or other recompense from a defendant. Alternatively, the court may simply ask the CPS to assist the court.

The Court of Appeal anticipated difficulties in some cases where confiscation (in the public interest) and compensation (for the private prosecutor's own benefit) were both sought. The Court would have a duty to consider carefully whether it required assistance, as it had no machinery of its own to carry out any inquiries. In such a case where the court asked for such assistance from the CPS, the Director would use the powers given to intervene in the proceedings either by taking over the proceedings or assisting the court.

When considering any request by a court for the Director to intervene, prosecutors should assess whether there is a need to take over the proceedings under section 6(2) POA 1985. In some cases, legal submissions on behalf of the Director might suffice. However, where a possible conflict of interest is identified, the case might need to be taken over at the confiscation stage by the Director.

When to take over a private prosecution in order to stop it

A private prosecution should be taken over and stopped if, upon review of the case, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.

There may be particular circumstances which would affect either the evidential or public interest stage of the Full Code Test. Factors which may lead to the conclusion that the Full Code Test is not met and the case should be stopped may include the following:

The following instances where it is highly likely that a prosecution would be an abuse of process (paragraph 3.5 of the Code), or where the circumstances mean that a prosecution is not required in the public interest:

• cases where the prosecuting authorities (including the police, the CPS or any other public prosecutor) have promised the defendant that they will not be prosecuted at all (a promise of immunity from prosecution): Turner v DPP (1979) 68 Cr App R 70. This does not include cases where the prosecuting authorities have merely informed the defendant that they will not be bringing or continuing proceedings;
• cases where the defendant has already been given either a simple caution or a conditional caution for the offence (which remains in being), and the simple caution was appropriately given in accordance with the Adult Offender Simple Caution Scheme, or the giving of the conditional caution was in accordance with the Director's Guidance on Conditional Cautioning;
• cases where had the police investigated, the defendant is likely to have been given either a simple caution or a conditional caution. In these circumstances, the CPS should take over and liaise with the police with a view to a caution being considered as it would have been had the proceedings not been conducted as a private prosecution.

The following instances where a prosecution is not required in the public interest:

• cases where the prosecution interferes with the investigation of another criminal offence;
• cases where the prosecution interferes with the prosecution of another criminal charge;
• cases where it can be said that the prosecution is vexatious (within the meaning of section 42 Senior Courts Act 1981, as amended by section 24 Prosecution of Offences Act 1985), or malicious (where the public prosecutor is satisfied that the prosecution is being undertaken on malicious grounds) – in this case it may be that the evidential stage is not met either.

The Supreme Court in R (on the application of Gujra) v CPS [2012] UKSC 52 held that the CPS's approach to taking over a private prosecution with the intention to discontinue it, unless the evidential stage of the Full Code Test was met, was lawful and did not frustrate or emasculate the objects underpinning the right to maintain a private prosecution in section 6 of the Prosecution of Offences Act 1985. The case settled the matter following a series of cases including 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] 75 Cr App R 34.

In cases where it is decided that taking over a private prosecution in order to stop it is the appropriate course of action, then, unless there are exceptional circumstances, the CPS should write to the private prosecutor explaining the reasons for the decision.

The CPS will also give consideration to whether the case involves a victim as defined in the Victims Code as any such individual would be eligible to seek a review of the decision to stop the prosecution under the Victim's Right to Review Scheme (VRR).

In such circumstances, prosecutors should write to the victim, who may or may not be the private prosecutor, notifying them of the decision to stop the prosecution, explaining the reasoning and advising them of their right to seek a review of the decision. Contact details should be provided so that the victim can easily lodge a request for review if they choose to take this course of action.

Any request for a review should be dealt with in accordance with the guidance issued in relation to the VRR scheme.

When not to take over a private prosecution

The CPS should not take over a private prosecution if:

• both stages, evidential and public interest, of the Full Code Test are met; and
• there is no particular need for the CPS to take over the prosecution.

Prosecutors should refer to the examples provided in the sections above regarding when to take over and continue and when to take and discontinue a private prosecution.

In cases where it is decided that not taking over a private prosecution after receiving a specific request to intervene is the appropriate course of action, then, unless there are exceptional circumstances, the CPS should write to both the private prosecutor and the defendant explaining the reasons for the decision.

It should be noted that the Attorney General has the power to enter a nolle prosequi to stay proceedings in the Crown Court at any stage and may receive such requests to do so in cases where the CPS has decided not to take over a private prosecution. In such circumstances, the Attorney General's Office will require a full briefing setting out the reasons for not taking over the private prosecution in order to stop it.

Where the CPS has concluded that a prosecution is not required in the public interest, it would normally follow that where those same factors apply to a private prosecution, the CPS will take over and stop it. However, there may be cases where the CPS has decided that it is not in the public interest to bring a prosecution but another body which investigates and prosecutes crime has done so and it is appropriate for them to do so. In such a case, notwithstanding the Code test was not met in respect of a prosecution by the CPS, it may be met where another body is able to prosecute and that prosecution is required in the public interest. See Scopelight Ltd v Chief of Police for Northumbria and the Federation Against Copyright Theft (FACT) Ltd [2009] EWCA Civ 1156 which received approval from the Supreme Court R (on the application of Gujra) v CPS [2012] UKSC 52 [para 31]: one decision (that it is not in the public interest for the CPS to prosecute) does not bind the other (whether or not it is in the public interest for the private prosecutor to prosecute).

Taking over proceedings after allocation/sending

The CPS is not a party to proceedings until such time as it takes over the prosecution. However, once a request is received, the CPS must communicate with the court to ensure that sufficient time is made available for the decision to be made in accordance with the mandatory stages of this guidance and the timescales referred to above (e.g.  14 days for parties to provide information).

Appeals

When the CPS is asked to consider taking over an appeal, the principles outlined in this guidance should be applied. The reviewing lawyer should also consider any information provided by the Court of Appeal prior to the request to take over.

Re-institution of Proceedings

Requests to take over a private prosecution may sometimes involve cases where the CPS has previously decided not to prosecute. In these circumstances, the principles outlined in this guidance should be applied to consider whether or not to take over the private prosecution. If a decision is reached that differs from the original CPS decision not to prosecute, the reviewing lawyer should refer to the prosecution guidance on Reconsidering a Prosecution Decision.

DPP Consent Cases

If an offence requires the DPP's consent to prosecute, the private prosecutor must seek that consent. If the proposed prosecution passes the Full Code Test, the CPS will take over the proposed prosecution. Conversely, if the proposed prosecution fails the Test, the DPP's consent to prosecute will not be given. In such cases, a private prosecutor should refer the case to their local CPS Area.

CPS Disclosure of Material to Third Parties

A private prosecutor, or an intending private prosecutor, or a defendant in a private prosecution, will sometimes ask for the disclosure of documents or information by the CPS. The rules about CPS disclosure of material to third parties direct the way the CPS deals with this kind of request.

The right to bring a private prosecution does not confer on an intending private prosecutor a right of access to the statements, photographs, reports or other documents held by the CPS: R v DPP ex parte Hallas [1988] 87 Cr App R 340. Nor would a defendant have a right to obtain documents from the CPS.

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 and Another v Director of the Serious Fraud Office and Others [1999] 2 AC 177.

It is unlikely to be in the interests of justice for the CPS to disclose case material to a potential private prosecutor if that material has been reviewed and is not in itself considered to be sufficient to pass the evidential stage of the Full Code Test. A possible exception to this is if the private prosecutor has separate evidence which, taken with that held by the CPS, may constitute sufficient evidence to provide a realistic prospect of conviction. However the CPS should consider the principles set out in the prosecution guidance on Disclosure of Material to Third Parties when considering voluntary disclosure of documents and information held by the CPS, in particular, personal and sensitive data.

Any voluntary disclosure should be even-handed between the parties and therefore any documents supplied to the private prosecutor at their request should also be supplied to the defendant and vice versa.

Summonses for material held by the CPS

Once there has been an allocation or transfer, the Crown Court may grant a private prosecutor a witness summons to secure the production of relevant material from the police (or the CPS) in order that the private prosecutor should be able to comply with their disclosure obligations: R v Pawsey [1989] Crim LR 152.

The CPS will normally refer the inquirer to the owner and holder of the material sought, which will normally be the police. That does not prevent the CPS from advising the police on a point of disclosure if asked to do so; see the prosecution guidance on Disclosure of Material to Third Parties.

Prosecutor's Duty to Disclose Unused Material

If the CPS takes over a private prosecution, the reviewing lawyer will have the usual prosecutor's duty to disclose unused material to the defence. Where the CPS has not taken over a private prosecution, the private prosecutor is under that duty; see the Disclosure Manual.

Where the CPS intends to take over a prosecution to continue it and there are disclosure issues to be resolved, every effort should be made to identify fully the issues and to resolve these prior to taking over the case. This should minimise any disruption to the proceedings. To do so, prosecutors should seek to:

• agree police involvement in the case;
• obtain all disclosure material in the possession of the police, the private prosecutor and the defendant;
• identify any third parties in possession of potential disclosure material, and request the police to obtain any such material; and
• consider the available disclosure material, identify all disclosure issues and, where possible, resolve them prior to taking over the case or determine how they will be resolved once the case is taken over.

Difficulties for the CPS will arise where the CPS has not taken over a private prosecution that has been referred to it but is aware that material or 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 there are public interest immunity (PII), or other considerations, that prevent disclosure. If the CPS is, or can be, in possession of the material, the CPS must do one of two things:

• notify the private prosecutor and the defendant of the existence of the 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, the CPS must take over the private prosecution.

In any case in which the CPS is made aware of material which has not been disclosed to the defendant, and which the CPS cannot ensure is disclosed, which meets the disclosure test, the CPS must take over the private prosecution.

When the CPS takes over a private prosecution because of difficulties over disclosure of material to the defendant, the CPS will review the case in accordance with the Full Code Test and in the light of any disclosure issues.

Disclosure by the Private Prosecutor

On occasions when the CPS examine a case in order to decide whether or not to take over the prosecution, and decide to allow the private prosecution to continue, prosecutors may come across disclosure failings by the private prosecutor. An example would be a failure by the private prosecutor to disclose relevant evidence to the defendant or a failure to disclose unused material in their possession to the defendant. In these cases, the CPS must advise the private prosecutor of their disclosure obligations.

If, after asking the private prosecutor to provide details of items disclosed, the CPS cannot be satisfied that the private prosecutor has made proper disclosure, the reviewing lawyer must inform the defendant. Since the private prosecutor has the unused material in their possession, the defendant should be able to obtain 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. It is not the role of the CPS to discipline private prosecutors but rather it is for the courts to control private prosecutors. Where a court or a defendant asks the CPS to take over the case because of misconduct by the private prosecutor, the CPS will review the case as set out in earlier sections of this guidance.

There will be occasions when it would be appropriate for the reviewing lawyer to copy to other parties and the court any correspondence that the CPS has had in the case.

Application for a Summons by a Private Prosecutor, where the CPS has already started proceedings

When the CPS is already pursuing what it considers to be the appropriate charges, a magistrate should be slow, in the absence of any special circumstances, to issue a summons for a more serious charge on the application of a private prosecutor. Such a course could well be oppressive; the possibility of the DPP taking over the private prosecution is a relevant factor - R v Tower Bridge Metropolitan Stipendiary Magistrate Ex Parte Chaudhry [1994] 99 Cr App R 170.

Procedure

If it appears that the case might be one that the CPS should take over, the private prosecutor should be asked to pass the evidence and other documents to the CPS so that a decision whether the prosecution should be taken over can be made. The police should also be asked if they have information or evidence that would assist.

In practice it is unlikely that private prosecutors will refuse to hand over material. But, if this does happen, the CPS will not be able to compel the private prosecutor to do so unless the CPS takes over the private prosecution. The law is summarised in the guidance Disclosure of Material to Third Parties section above (with the difference that it is the intending prosecutor who is seeking documents from the CPS; the courts are likely to apply the same principles if the CPS is seeking documents from a private prosecutor).

Sometimes there will not be enough evidence or information for the CPS to be able to decide whether or not to take over the prosecution. If this happens, the CPS will ask the police to investigate the case if it seems that further investigation is necessary.

However, the CPS cannot direct the police to carry out an investigation. If the police do not immediately agree to investigate, the reviewing lawyer should give the police up to 14 days in which to inform the CPS whether they will investigate.

If the police decline to investigate or to make a decision whether they intend to do so, then the CPS will need to make the decision based on the information contained within the material already held.

A decision to take over a case is usually focused on the charges selected by the private prosecutor. However that does not preclude the CPS from considering other charges provided they are apparent from the material available. If further investigation of other charges is required, see above.

A case is taken over by writing to the parties and the court, setting out the powers to take over a case and then stating that the CPS is taking over the case. Normal discontinuance procedures apply if that is the decision in the case. If the CPS decides that the case will not be taken over, the reviewing lawyer should inform all parties and the court.