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Private Prosecutions

Posted on 16 October 2015

FCA publishes its Business Plan

England and Wales is one of the few jurisdictions in which a private individual has the right to bring a criminal prosecution.

It appears that the use of private prosecutions has increased rapidly over the last few years: the diminution of resources available to public prosecuting bodies, such as the Crown Prosecution Service (CPS) and the Serious Fraud Office, may have contributed to this.  Some organisations, such as the RSPCA, have long conducted private prosecutions to the extent that they are sometimes mistaken for public prosecutors, but the right is not confined to charities or similar entities. Individuals too may bring such a prosecution, as a victim or even in circumstances where they have no personal involvement but merely a sense that justice has not been done. 

There is a developing trend in private prosecutions being brought by commercial organisations, either instead of or in addition to civil litigation. Prominent cases such as Virgin v Zinga, and Mirchandani v Somaia have demonstrated that a private prosecution is a viable, important tool for both individuals and companies. The Virgin case helped clarify the extent of the powers and duties of a private prosecutor, whilst the Mirchandani case hit the headlines in September 2015 as reputedly having been the largest private prosecution in the UK (to date – watch this space), concerning a fraud of approximately US$20 million.

Where corporates have been victims of crime, whether financial crime or intellectual property offences, a private prosecution is an option worth considering. Although the burden of proof is higher than in civil proceedings, the costs implications may be lower and  the procedure is often quicker.  In some cases it is possible to recover part of the costs, at least, from the state. The remedies available are obviously different and the implications for the defendant are much wider, so that a private prosecution is capable of providing a remedy against a wrong-doer who does not have enough money to make a civil claim worthwhile. 

To begin a private prosecution, there is no obligation to approach the police first nor to notify or urge them to investigate, although of course it may be prudent to do so. Generally, a private prosecutor has all the powers of a public prosecutor except where a specific law says otherwise. The risk that all private prosecutions face is that the Director of Public Prosecutions (DPP) has the power to take over a private prosecution and bring it to an end.

The test applied by the DPP and her staff at the CPS is the same as that for public prosecutions:  they must apply the two stage "Full Code Test", asking themselves whether there is sufficient evidence for there to be a realistic prospect of conviction and, if so, whether a prosecution is in the public interest. If the case fails the Full Code Test, the CPS will take over the private prosecution and stop it. If, however, it passes the test, the CPS has discretion whether to take over the proceedings and prosecute. Ordinarily, unless there is a "particular need" for the CPS to prosecute, the private prosecutor will be permitted to continue. Examples of cases in which there might be a 'particular need' include when the offence is serious, there are detailed disclosure issues to resolve, the prosecution requires disclosure of sensitive material or the conduct of the prosecution involves applications for special measures or for witness anonymity. Where the CPS is satisfied that a sound case is in the hands of capable and responsible lawyers, the "particular need" criterion is unlikely to be met.

Some have questioned whether it is fair that individuals should shoulder the burden of bringing alleged criminals to account and have criticised private prosecutions as justice reserved for those with deep pockets. Others counter that a private prosecution can provide justice for a victim when the state is unable or unwilling to devote sufficient funds to the case.  It is a useful weapon which has its rightful place in the armoury of litigation options available to individuals and companies. Where the state has refused to prosecute a case it allows for redress where otherwise there would be none.

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