In order to commence a private prosecution, an individual, company or organisation must first apply to the magistrates' court for the issue of a summons.
In April 2018, an amendment to Rule 7 of Criminal Procedure Rules ('Starting a prosecution in a magistrates' court') was made to distil principles from existing case law, requiring a private prosecutor to give the following additional information as part of an application for a summons:
- The grounds for accusing the defendant of the alleged offence(s);
- The details of any previous such applications by the same applicant in respect of any allegation now made;
- The details of any current or previous proceedings brought by another prosecution in respect of any allegation now made; and
- A declaration that: (i) the allegations in the application are substantially true; (ii) the evidence on which the applicant relies will be available at the trial; (iii) the details given above are true; and (iv) the application discloses all the information that is material to what the court must decide.
As currently cast, a private individual or body represented by a lawyer is exempt from this part of Rule 7. However, from 1 April 2019, the requirement to provide this information will be extended to all private prosecutions, regardless of whether the private prosecutor is represented by a lawyer or not.
The overarching reason for the newest amendment is to make explicit the duty of candour imposed upon the prosecution. This comprises a duty: (i) not to mislead the court in any material way; (ii) to disclose to the court any material which is potentially adverse to the application or might militate against the grant of a summons; and (iii) to disclose to the court any matters which indicate that the grant of a summons might be inappropriate.
Only a month after the 2018 amendment came into force, the High Court gave judgment in the case of R (Kay) and Another v Leeds Magistrates’ Court  EWHC 1233 (Admin) and, in doing, made it clear that when summonses are being applied for on an ex parte basis (i.e. in the absence of the proposed defendant), the prosecutor’s duty of candour is “the foundation stone upon which such decisions are taken”. In that case, a private prosecutor, who was represented by a lawyer, was initially successful in having a summons issued by the magistrates’ court in respect of four fraud offences. However, in the course of the application the prosecution failed to bring to the court's attention a settlement agreement which was entered into before the private prosecution was started which was intended to settle all civil and criminal claims. In those circumstances, the High Court was clear that the settlement agreement should have been put before the District Judge. As a result of the failure to disclose, the summons was quashed, with costs awarded against the prosecutor in favour of the defendant.
The imminent change to Rule 7 is therefore a welcome one, recognising as it does the importance of a properly prepared and appropriately balanced application for a summons in pursuit of a private prosecution. Such a development must, therefore, be in the interests not only of those who practice in this area but also of those who seek to prosecute and those who may in due course be required to defend such proceedings.