Written evidence from Professor Peter Hungerford-Welch, The City Law School, City, University of London (PPS0006)

This note sets out the background to private prosecutions in England and Wales, identifying some of the issues that arise and some of the safeguards that are in place, and commends the idea of a Code of Practice to govern private prosecutions.

About the author

I am a Professor of Law and Associate Dean at The City Law School, City, University of London. I am a contributor to Blackstone’s Criminal Practice (Oxford University Press, annual), including chapters on commencement of criminal proceedings and abuse of process. I am also Cases Editor of the Criminal Law Review, the leading journal on criminal law and practice.

Private prosecutions in England and Wales

A private prosecution may be defined as one that is not brought by or on behalf of a ‘public authority’ (as defined by the Prosecution of Offences Act 1985, s. 17(6), which governs recovery of prosecution costs, and includes the police, the CPS, local authorities and government departments), or one that is not brought by a ‘relevant prosecutor’ for the purposes of the Criminal Justice Act 2003, s. 29 (which specifies those prosecutors who may commence a prosecution by means of a written charge and requisition, rather than applying to a magistrates’ court for the issue of a summons, and which applies to the police, the Crown Prosecution Service, the Serious Fraud Office, the National Crime Agency, the Attorney General, government departments, and a number of other prosecutors specified by statutory instrument). There is considerable overlap between these two definitions but they are not identical. The latter definition is perhaps preferable, as it is based on the commencement of the prosecution.

Any individual or company may commence a private prosecution. Dicta in R (Gladstone plc) v Manchester City Magistrates’ Court [2004] EWHC 2806 (Admin) suggested that a private prosecution could be brought where it did not relate to an individual grievance, provided that the prosecutor could establish a public interest and benefit as opposed to a purely private interest in criminal proceedings. However, in Ewing v Davis [2007] EWHC 1730 (Admin), Mitting J pointed out that, historically, there has never been a requirement that a private prosecutor has to show a public interest where the prosecution is brought under a public general Act, and the power to bring a private  prosecution has not been fettered by modern statute. His Lordship went on to hold that public interest in a private prosecution is established by the nature of the offence as defined in the statute that creates it, not by the circumstances leading up to it. His Lordship concluded that Gladstone should not be taken as an invitation to magistrates to examine the circumstances of alleged offences and their relation to the private prosecutor.

The ability to bring a private prosecution is seen by some as an important constitutional safeguard for cases where the State, usually acting through the Crown Prosecution Service, declines to prosecute a case. However, the importance of private prosecutions in this regard has diminished, at least to some extent, in light of the CPS Victim Right to Review process, through which someone who says that they were the victim of a crime can ask the CPS to review a decision not to prosecute the alleged perpetrator.

In Barry v Birmingham Magistrates’ Court [2009] EWHC 2571 (Admin), Cranston J said (at [13]) that “there is no requirement for a person seeking to have a summons issued to approach the police first’. However, he observed that, ‘in a particular case it may be a relevant circumstance whether or not the person seeking a summons has approached the police. The failure of the police to proceed in a particular case may demonstrate that it is hopeless”. However, there remains a potential ‘justice gap’ in cases where there are insufficient police resources to investigate a case, and so the only possibility of securing a prosecution is for a private prosecution to be brought.

The principal concern in respect of private prosecutions is that the prosecutor has a direct interest in the outcome of the case and so lacks the objectivity of a public prosecutor. It has often been said that the prosecutor’s role is not to secure a conviction at all costs but to act as a minister of justice. That is perhaps more challenging to bring about in the case of a private prosecution.

Existing safeguards

There are, however, a number of existing safeguards.

Issue of summons

Private prosecutions are usually commenced by applying to a magistrates’ court for the issue of a summons (historically known as ‘laying an information’). Under CrimPR 7.2(1), a prosecutor who wants the court to issue a summons must either serve a written application on the court, or present an application orally to the court (but with a written record of the allegation(s) made by the prosecutor). By virtue of CrimPR 7.2(3), the application must set out the allegation(s) made by the applicant.

Unless the prosecution is being brought by or on behalf of a ‘public authority’, the application must also set out the grounds for asserting that the accused has committed the alleged offence(s), and must disclose details of any previous such application by the same applicant in respect of any allegation now made, and of any current or previous proceedings brought by another prosecutor in respect of any of the allegations now made. The application must also include a statement that, to the best of the applicant’s knowledge, information and belief, the allegations contained in the application are substantially true, the evidence on which the applicant relies will be available at the trial, and that the application discloses all the information that is material to what the court must decide (CrimPR 7.2(6)). Where the latter statement is made orally, it must (unless the court directs otherwise) be made on oath or affirmation (r. 7.2(7)).

It was held in R (Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin) (at [22]) that, when considering whether to issue a summons:

“(1) The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.

(2) If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so – most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.

(3) Hence the magistrate should consider the whole of the relevant circumstances to enable him to satisfy himself that it is a proper case to issue the summons and, even if there is evidence of the offence, should consider whether the application is vexatious, an abuse of process, or otherwise improper.

(4) Whether the applicant has previously approached the police may be a relevant circumstance.

(5) There is no obligation on the magistrate to make enquiries, but he may do so if he thinks it necessary.

(6) A proposed defendant has no right to be heard, but the magistrate has a discretion to:

(a) Require the proposed defendant to be notified of the application.

(b) Hear the proposed defendant if he thinks it necessary for the purpose of making a decision.”

The Court went to hold that there is a ‘duty of candour’ when applying ex parte for the issue of a summons in the magistrates’ court. Reference was made (at [24]) to Grays Justices, ex parte Low [1988] 3 All ER 834, where Nolan J said (at p. 837J) that “the withholding of material information is in itself a critical factor in determining whether a summons should be set aside as an abuse of the process of the court”. The Court then pointed out (at [25]) that this duty has been described in a number of ways, including as a duty of ‘full and frank disclosure’; a duty ‘not to mislead the judge in any material way’; a duty to disclose ‘any material which is potentially adverse to the application’. At [26], the Court quoted the words of Hughes LJ in Re Stanford International Bank Ltd [2010] EWCA Civ 137 (at [191]):

“In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge.”

It was held in R (Charlson) v Guildford Magistrates’ Court [2006] EWHC 2318 (Admin) that, when considering whether to issue a summons for a private prosecution after the CPS has discontinued a prosecution in respect of the same facts, magistrates should consider whether the allegation was of an offence known to law and, if so, whether the ingredients of the offence are prima facie present; whether a summons was time barred; whether the court had jurisdiction; whether the informant had the necessary authority to prosecute; and any other relevant facts. However, the Court also confirmed that a private prosecutor is not bound by the Full Code test in the Code for Crown Prosecutors.

It follows that there is judicial scrutiny of the commencement of a private prosecution (and it is possible to apply to the High Court for judicial review of the decision to issue a summons if appropriate scrutiny was not applied).

Discontinuance by Director of Public Prosecutions

If a summons is issued, the DPP can take over the prosecution of the case and then discontinue it if the Full Code test is not met (namely, a realistic prospect of conviction and it being in the public interest to continue the prosecution).

In Raymond v A-G [1982] QB 839 the Court of Appeal considered whether it was legitimate

for the DPP to take over a prosecution with the sole purpose of offering no evidence. Sir Sebag

Shaw said (at pp. 846H–847D):

“when the Director intervenes in a prosecution which has been privately instituted he may do so not exclusively for the purpose of pursuing it by carrying it on, but also with the object of aborting it; that is to say, he may ‘conduct’ the proceedings in whatever manner may appear expedient in the public interest. The Director will thus intervene in a private prosecution where the issues in the public interest are so grave that the expertise and the resources of the Director’s office should be brought to bear in order to ensure that the proceedings are properly conducted from the point of view of the prosecution.

On the other hand, there may be what appear to the Director substantial reasons in the public interest for not pursuing a prosecution privately commenced. What may emerge from those proceedings might have an adverse effect upon a pending prosecution involving far more serious issues. The Director, in such a case, is called upon to make a value judgment. Unless his decision is manifestly such that it could not be honestly and reasonably arrived at it cannot, in our opinion, be impugned.”

The DPP has a published policy setting out the circumstances in which the CPS will take over

a private prosecution. The section of the policy dealing with taking over private prosecutions in

order to discontinue them states that:

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

The Code goes on to give examples of factors which ‘would be damaging to the interests of

justice if the private prosecution was not discontinued’. Th ese include cases where the prosecution would interfere with the investigation or prosecution of another offence; the prosecution is vexatious (within the meaning of the Senior Courts Act 1981, s. 42) or malicious; the prosecuting authorities have promised the defendant that he or she will not be prosecuted at all (a promise of immunity from prosecution); or the defendant has already (and appropriately) been given a simple caution or a conditional caution for the offence.

The lawfulness of the approach of the CPS to taking over private prosecutions in order to discontinue them was considered by the Supreme Court in R (Gujra) v CPS [2012] UKSC 52. It was argued, in effect, that if a private prosecution did not have to satisfy the Full Code test, it was inappropriate for that to be the test applied by the DPP when deciding whether to take over and discontinue a private prosecution. However, it was held by the Supreme Court (by a 3:2 majority) that this policy did not frustrate the right, under the Prosecution of Offences Act 1985, s. 6(1), to bring a private prosecution. It was therefore lawful for the DPP to apply to private prosecutions the same tests (namely, evidential sufficiency and public interest) which apply to cases brought by the CPS.

Abuse of process

If a summons is issued in a case where it should not have been (and the prosecution is not discontinued by the DPP), it is open to the defendant to apply to the magistrates’ court to stay the proceedings as an abuse of process. Proceedings can also be stayed as an abuse of process if either the defendant could not receive a fair trial or it would not be fair to try the defendant.

In R (Dacre) v City of Westminster Magistrates’ Court [2008] EWHC 1667 (Admin), the Divisional Court considered abuse in the context of private prosecutions. Latham LJ (at [26]) said that in deciding whether “it would offend the court’s sense of justice for the prosecution to proceed … both motive and conduct can clearly be relevant. As far as motive is concerned, proceedings tainted by mala fides or spite or some other oblique motive may fall into this category”. However, he went on to note (at [27]) that it had been held in Bow Street Metropolitan Stipendiary Magistrate, ex parte South Coast Shipping Co. Ltd [1993] QB 645, that the mere presence of an indirect or improper motive in launching a prosecution did not necessarily vitiate it, and the court would be slow to halt such a prosecution in the case of mixed motives unless the conduct was truly oppressive. Drawing an analogy with the principles relating to entrapment in relation to public prosecutions, his Lordship went on to hold (at [31]) that there is “no reason in principle why … a private prosecution should not be considered an abuse of process if the crime which is the subject of the prosecution is one that has been encouraged by the private prosecutor or when in some other way the private prosecutor has essentially created the same mischief as that about which he or she complains”.

In D Ltd v A [2017] EWCA Crim 1172, the Court reiterated (at [41]) that the “legal principles relating to stay on the ground of abuse apply in precisely the same way to private prosecutions as they do to public prosecutions”, adding (at [59) that it is “well established that mixed motives do not of themselves necessarily vitiate the prosecution”.

It is clear from this that a defendant to a private prosecution will rarely be able to have to case stayed as an abuse of process.

Duty to comply with Criminal Procedure Rules

It is important to note that private prosecutors are required to comply with the overriding objective in the same way as ‘public’ prosecutors are. As the Divisional Court pointed out in Kay, at [23]:

“(1) Whilst the Code for Crown Prosecutors does not apply to private prosecutions, a private prosecutor is subject to the same obligations as a Minister for Justice as are the public prosecuting authorities — including the duty to ensure that all relevant material is made available both for the court and the defence.

(2) Advocates and solicitors who have the conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest and duty to act as a Minister for Justice in preference to the interests of the client who has instructed them to bring the prosecution — owing a duty to the court to ensure that the proceeding is fair”.

In D Ltd v A [2017] EWCA Crim 1172, the Court of Appeal made a similar point, citing with approval Zinga [2014] EWCA Crim 52, where Lord Thomas CJ had said (at [61]) that barristers and solicitors who have conduct of private prosecutions “must observe the highest standards of integrity, of regard for the public interest and duty to act as a Minister for Justice … in preference to the interests of the client who has instructed them to bring the prosecution”.

Where the prosecutor is legally represented, the risk of ethical issues arising from the conduct of the prosecution is reduced to a significant extent by the professional obligations of the legal representatives, which can be enforced by the Bar Standards Board and Solicitors Regulation Authority.

However, compliance with the Criminal Procedure Rules is necessarily harder to enforce in the case of an unrepresented prosecutor, though the court is able to exercise case management powers under Part 3 of the Criminal Procedure Rules to try to enforce compliance. That said, the powers available to the court to enforce compliance are somewhat limited (and a prosecution could not be terminated for non-compliance with the CrimPR unless it was being conducted in such a way as to amount to an abuse of process).

Particular issues relating to private prosecutions

Some aspects of criminal procedure can give rise to particular concern in the case of private precautions.

Disclosure

One example is the duty of disclosure under the Criminal Procedure and Investigations Act 1996, which requires disclosure of unused material held by the prosecution that may undermine the prosecution case or assist the defence case. For this duty to be effective, the investigation must be conducted with an open mind. In a public prosecution, the Attorney General’s guidelines on disclosure make clear that the police are required to pursue all reasonable lines of enquiry, including any that point away from the suspect.

These guidelines do not apply to private prosecutions, and it may in any event be something of a challenge to achieve this degree of open-mindedness at the investigative stage of a private prosecution (and the private prosecutor may lack the resources to do so). A consequence of this is that there is a risk that evidence exonerating the defendant may be overlooked in the investigation which precedes the prosecution.

Access to evidence gather by the police

One matter that may cause problems for a private prosecutor relates to access to evidence, such as witness statements, in the possession of the police or the CPS. In Scopelight Ltd v Chief Constable of Northumbria [2009] EWCA Civ 1156, it was held that the police may retain seized property where that property was required for the purpose of investigating or prosecuting an offence, even where the CPS have notified the parties of its decision not to prosecute those from whom the property had been seized. The police can then determine whether it is necessary in all the circumstances that the property that has been seized should be retained for further examination or for use as evidence at a trial for an offence. Leveson LJ (at [53]) said:

“If a prosecution is not to be pursued by the CPS but some other public or private body wishes to pursue a private prosecution, the relevant circumstances include (but are not limited to): the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public have a legitimate interest in the criminal prosecution of this conduct; the police view of the significance of what has been retained; and any material fact concerning the proposed defendant. All this falls to be considered so that a balanced decision can be reached upon whether retention is necessary ‘in all the circumstances’. Such a decision would be capable of challenge on traditional public law grounds [i.e. by way of judicial review].”

However, the bringing of a private prosecution does not confer a right of access to statements,

photographs or reports in the hands of the police or the CPS, even if the request is a legitimate

one and even if they are essential to the success of the prosecution (DPP, ex parte Hallas (1987) 87 Cr App R 340).

Nonetheless, once the matter has been sent for Crown Court trial, the prosecution is deemed to be on behalf of the Crown, and so disclosure may be ordered at that stage (Pawsey [1989] Crim LR 152).

Clear guidance to the police on co-operation with private prosecutions would be of assistance in clarifying their responsibilities in this regard.

Confiscation orders

Another potentially difficult issue arises in the context of confiscation orders under the Proceeds of Crime Act 2002, s. 6, which can be made in any case where the offender has benefited from criminal conduct. In R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 52, it was held that a private prosecutor is entitled to initiate confiscation proceedings. The controversial aspect of this is that the prosecutor can in some cases receive a share of the money that is confiscated (e.g. under the Home Office Asset Recovery Incentivisation Scheme, ‘ARIS’), thereby giving the

prosecutor a financial interest in the outcome of the case. As was made clear in Wokingham Borough Council v Scott [2019] EWCA Crim 205 (at [65]):

“where there is a potential conflict of interest, namely a financial interest in the outcome of the prosecution set against the objectivity required of a prosecutor, the prosecutor must be scrupulous in avoiding any perception of bias. The possibility of a POCA order being made in the prosecutor's favour should play no part in the determination of the evidential and public interest test within the Code for Crown Prosecutors. We hope that this message will be relayed to all those making charging recommendations and decisions as soon as possible”.

Whilst this case concerned a prosecution by a local authority, the same principles clearly apply with equal, if not greater, force to private prosecutions.

Costs from public funds

It should be noted that there may be a cost to the public purse in public prosecutions being brought. Whether or not a private prosecution is successful, the prosecutor (so long as not a ‘public authority’) may seek costs from central funds under the Prosecution of Offences Act 1995, s 17, so long as the proceedings (whether in a magistrates’ court or the Crown Court), relate to an indictable offence (whether triable only on indictment or triable either way). The payment out of central funds is for “such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings”. However, under subs (2A), "Where the court considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount mentioned in subsection (1), an order under this section must be for the payment out of central funds of such lesser amount as the court considers just and reasonable". Under paragraph 2.6.1. of the Practice Direction (Costs in Criminal Proceedings), such an order "should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause".

An order for costs may be made against the defendant, but it is likely that any shortfall will be the subject of an application under s. 17. Private prosecutions should therefore not be seen as a way of avoiding public expenditure on prosecutions.

Conclusion

Removal of the right to bring a private prosecution could leave victims of crime without a remedy in the criminal courts in those cases where there are insufficient public resources to investigate and prosecute. Whilst a civil remedy may be available, this may be of limited utility if the perpetrator of the wrong has no funds, and civil proceedings may lack the deterrent effect of a criminal prosecution.

Hard evidence of the number of private prosecutions and of cases which have proved ‘problematic’ is hard to come by. However, there has been widespread criticism of the approach taken to prosecuting by the RSPCA, the most prolific private prosecutor, regarded by some as over-zealous.

Concerns amongst practitioners that private prosecutions were sometimes being conducted inappropriately led the Private Prosecutors Association to create a Code for Private Prosecutors, of which I (as an independent academic) was invited to be editor-in-chief. The Code covers the investigative process, the decision to prosecute, and the conduct of the prosecution from beginning to end. Its purpose is to offer guidance on the ethical issues that have to addressed. It offers private prosecutors an equivalent to the CPS Code for Prosecutors. It is hoped by the PPA that this Code will receive judicial commendation as a statement of good practice and possibly even be referred to in a future iteration of the Criminal Practice Directions.  Some may be uncomfortable with this, as the PPA is a membership organisation with no official standing. An attractive alternative would be the creation of a statutory Code, perhaps modelled on the PPA Code. A requirement for private prosecutors to comply with a Code of Practice would certainly help to ensure the proper conduct of private prosecutions.

It is vital that the DPP’s right to take over and, if appropriate, discontinue a private prosecution be retained. Whilst some may see this as a way of the State stifling the ability to bring a private prosecution, it is an important safeguard to prevent private prosecutions from continuing in cases where such a prosecution is inappropriate. Should the DPP exercise this power improperly, the decision to discontinue may be challenged in the High Court through an application for judicial review.

July 2020