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Private prosecutions: the key considerations

Jennifer Harper

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Jennifer Harper | Senior Associate

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Kyle Phillips

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Kyle Phillips | Partner

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Private prosecutions are increasingly being used by individuals and commercial entities instead of, or alongside, civil proceedings. However, undertaking a private prosecution is no mean feat. 

But when brought properly, for the right reasons and conducted to the highest standards, they can reap results you would not get from any other remedy. 

Below is a short summary of private prosecutions including six key things to consider before deciding to commence a private prosecution.

What is a private prosecution? 

Although most criminal prosecutions are brought by public authorities, such as the Crown Prosecution Service (CPS), it is possible for any individual or company to commence a criminal prosecution against anyone that it believes has committed a criminal offence (see Section 6 of the Prosecution of Offences Act (POA) 1985). 

In these cases, the person bringing the proceedings effectively steps into the shoes of the public authority and conducts the case from the investigation stage through to the trial.

This is known as a private prosecution.

Why would you bring the prosecution yourself instead of reporting the crime to the authorities to investigate?

In many cases reporting to the authorities is the most appropriate thing to do. However, private prosecutions provide an alternative means to prosecute offences which the public authorities would not have the time, inclination or resources to deal with. This could be due the size, complexity or nature of the matter.  Private prosecutions also assist in urgent cases when there is not time to wait for the public authority to act. 

By way of example we recently acted for a client who successfully used a private prosecution to obtain convictions for a complex global fraud that the public authorities would have been unlikely to investigate. The relative speed of the prosecution meant that the client was able to put a stop to the defendants' continued production of counterfeit goods and therefore limit the damage to the company.
Getting the right help
Private prosecutions are a powerful tool. They can provide results that you would not be able to achieve using any other remedy. However, they require careful consideration as well as expert advice and assistance. Commenced for the wrong reasons and conducted poorly, they are likely to end in wasted costs and negative outcomes. Having an open conversation with legal experts in this area before deciding to prosecute will help provide a well-rounded picture on your best course of action.

The team at Howard Kennedy has experience of prosecuting and defending private prosecutions for a range of clients and can help advise on whether a private prosecution is the right fit for your matter. 

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1. What is your motive?

It is accepted that private prosecutors may have mixed motives for starting proceedings and it is common for there to be a civil element however, the primary motive must be a desire to prosecute a criminal offence. Private prosecutions should not be used as a means to gain leverage over a party to civil litigation or as a means to encourage a settlement agreement. So, if your primary motive is the pursuit of justice then a private prosecution is a good option. 

2. How complex is the case? 

A case could be complex because of its size, jurisdictional reach or the subject matter. These complexities need to be considered carefully to determine whether they point towards or away from a private prosecution. For example, if it involves a niche subject matter, you as the expert may be better placed to conduct the prosecution. However, if it's complex because the defendant is outside of the jurisdiction it may be that the additional powers held by the public authorities are required.   

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3. Do you have the evidence to convict? 

In starting and continuing a private prosecution you will be expected to have sufficient evidence to provide a realistic prospect of conviction (i.e. the evidence is strong enough for a jury to be able to be sure beyond reasonable doubt that the suspect committed the offence). If you don’t have the evidence, where is it and can it be legally obtained? There are various means available to private prosecutors to obtain relevant material and often these powers will be sufficient but in some circumstances it may be necessary to utilise the additional powers only available to a private prosecutor.

4. Is there sensitive or privileged material which you do not want to disclose to the defendant?

This question becomes particularly relevant if there are parallel civil proceedings. The disclosure regime in criminal cases requires the prosecution to review and schedule all relevant material, and to disclose any material which may be capable of assisting the defence case or undermining the prosecution case. Legal Professional Privilege (LLP) is not a bar to disclosure. Any relevant LLP material must be reviewed and scheduled and if it meets the disclosure test must be provided to the defence. Failure to comply with the disclosure obligations may result in the case being stayed as an abuse of process and potentially a costs order being made against the prosecutor. In most cases this is not an issue but given its importance it is something that should be considered carefully prior to commencing proceedings.

FCA investigations.
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5. Are you prepared for how the defence may respond?  

Once proceedings have commenced the Court will expect the prosecutor to see the case through to its conclusion. If the defence attempt to make numerous interlocutory applications (for example applications to withdraw the summons, dismiss the case on the evidence or stay the case as an abuse of process), this may result in a long and expensive process. Once the proceedings have started the private prosecutor's ability to withdraw without significant cost implications is limited. 

6. What costs can you recover? 

At the conclusion of a private prosecution, regardless of the outcome, it is possible (and in most cases highly likely) to obtain a costs order from central funds to compensate you for expenses incurred in the proceedings. If the prosecution is successful the Court may seek some or all of your costs directly from the defendant. On conviction the Court also has the power to make a confiscation order (which will go to the state) and a compensation order (which will go to the victim) against the defendants.

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Jennifer Harper

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Jennifer Harper | Senior Associate

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Kyle Phillips

Get in touch

Kyle Phillips | Partner

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