Private prosecutions AN INTRODUCTION TO UK LEGISLATION | JULY 2020 | SECOND EDITION It is a common misconception that only the Crown, government agencies and other public bodies can bring prosecutions. In England and Wales, a private prosecution can be brought by any private individual or body — including the victims of fraud.

WHAT IS A PRIVATE and compensation being awarded to An order may be made for payment the victim. It can also act as a powerful out of central (government) funds PROSECUTION? deterrent to those considering to compensate the prosecutor for A private prosecution is a criminal engaging in criminal activity against expenses properly incurred in the prosecution started by a private the victim. proceedings, but no such order will be individual or body, who is not acting made if the prosecution is instigated on behalf of the police or any other KEY CONSIDERATIONS or continued without good cause. If statutory prosecuting authority or a defendant is convicted, an order There are a number of potential risks body that conducts prosecutions. for costs can also be made against associated with private prosecutions the defendant. that need to be considered at the WHO CAN BRING A PRIVATE outset. These include the following. Legal aid is not available for PROSECUTION? private prosecutions. • The potential financial costs A private prosecution can be brought associated with bringing a HOW TO BRING A PRIVATE by any private individual or body. private prosecution. PROSECUTION Private prosecutions have increased • The Crown Prosecution Service may in recent years and are now take over a private prosecution and Anyone contemplating a private regularly brought by individuals either continue or discontinue it. prosecution should seek professional and organisations (including SMEs, The factors considered during the legal advice from a specialist solicitor insurance companies, global brands decision-making process are outlined or barrister. and large corporates) who have fallen in CPS legal guidance. victim to fraud. Step 1: investigate the fraud and • A defendant may institute a civil gather evidence The right to bring a private prosecution claim for malicious prosecution if the is set out in s6(1) of the Prosecution private prosecution should not have Be mindful of disclosure duties at of Offences Act 1985. Fraud offences been brought, for example if it is the outset. Ensure that all material (unlike some other offences) do not alleged the evidence was fabricated gathered in the course of the require the prior permission of the or the prosecution was brought investigation that may be relevant to Attorney General, the Director of with malice. the case is recorded and retained. Public Prosecutions, or the Director of Consideration should be given to using the Serious Fraud Office to commence. • If the prosecution fails, in certain circumstances – such as where experienced investigators to gather evidence, applying the same codes of WHY BRING A PRIVATE there has been an unnecessary act or omission – an adverse order for practice that apply to law enforcement. PROSECUTION? costs may be made against the If relevant material is held by the police private prosecutor. it may be possible – once the case is in Crimes which do not pose an court – to obtain a witness summons immediate safety risk to the public As with public prosecutions, a to secure the production of the are often seen as a lessor priority by prosecution may fail for a number relevant material from them. the authorities, in particular economic of reasons, including the defendant crime. The budgetary constraints on being found not guilty, the court ruling Step 2: assess the evidence and enforcement agencies have also led that there is no case to answer (or draft charges to a deficit of expertise to investigate insufficient evidence), or it may be The private prosecutor should and/or prosecute fraud. Victims may stayed as an abuse of process. 1 often see their cases being referenced consider whether the case meets the full code test in the Code for Crown by law enforcement as ‘civil issues’ COSTS despite overwhelming evidence Prosecutors and draft the charges of crime. Anyone bringing a private prosecution (where appropriate). In order to meet must be prepared to fund the investigation the test, there must be sufficient It is for this reason that many and prosecution. evidence to provide a realistic prospect individuals and organisations turn to of conviction and be in the public private prosecutions to obtain justice A private prosecution is subject to the interest to pursue the prosecution. If and to tackle economic crime such as same obligations and rules as a public the test is not met, the likelihood is that counterfeiting or fraud. prosecution. This means that a private the CPS will take over the prosecution prosecutor has a duty to pursue and discontinue it. 2 A successful private prosecution can reasonable lines of enquiry and obtain, result in a criminal conviction and retain and disclose relevant material. custodial sentence for the offender, Step 3: charges are laid before FINANCIAL PENALTIES AND FURTHER INFORMATION the court COMPENSATION The Bar Council to find a barrister. Once draft charges have been decided, The Magistrates’ and Crown Courts The Law Society to find a solicitor. an ‘information’ will be laid before the can order a convicted fraudster to pay Magistrates’ Court. The information compensation to the victim for personal Private Prosecutor’s Association for the provides details of the alleged offence injury, loss or damage resulting from voluntary code for private prosecutors. and the relevant legislation that the crime. ‘Loss’ may include a sum by creates it. Also see the resources section of way of interest. An award may be made our website. The Magistrates’ Court will then whenever it can fairly be said that a decide whether to issue a summons or particular loss results from the offence. Notes warrant. A summons, which is served Evidence is required to show what that 1 The CPS legal guidance on abuse of process states that on the accused details the offence(s) loss is. a case may be stopped if there is ‘something so unfair to be answered and the date, time and and wrong with the prosecution that the court should The power of the court to make a not allow a prosecutor to proceed’. address of the court that the defendant compensation order is governed by is required to attend. 3 2 R (on the application of Gujra) v Crown Prosecution ss130–134 of the Powers of Criminal Service [2013] 1 All ER 612. Courts (Sentencing) Act 2000. Step 4: case is heard in court 3 Section 1, Magistrates’ Court Act 1980. Also see Part 7 Depending on the nature of the The Crown Court can also make a Criminal Procedure Rules. charge(s), the case may be tried before confiscation order to deprive the the Magistrates’ or Crown Court. defendant of the financial benefit they have gained from their criminal conduct. This helpsheet was kindly reviewed NOTIFYING THE POLICE AND CPS To do this, the court has to decide and updated by Tamlyn Edmonds at whether the defendant has a criminal Edmonds, Marshall, McMahon. There is no requirement to notify lifestyle, or failing that has obtained a the police before bringing a private benefit from particular criminal conduct. prosecution; however, failure to Confiscation orders act as very powerful do so may have an impact on cost deterrents to criminals as, more often recovery at a later stage. It may also than not, they are more concerned be relevant to the Magistrates’ Court’s about holding onto their assets than considerations when considering an serving a custodial sentence. application for a summons. It is possible to ask the Crown Court There is also no requirement to notify to make both a confiscation and a the CPS, but they may be notified at compensation order. In these cases, any stage by the defendant or a third the victim is compensated out of the party and may decide to intervene confiscation receipts. and either continue or discontinue the proceedings themselves.

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