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Private Prosecutions

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Principle

A private prosecution is a prosecution started by a private individual who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions.

The right to bring private prosecutions is preserved by section 6(1) Prosecution of Offences Act, 1985 . There are, however, some controls: 

  • the DPP has power under section 6(2) Prosecution of Offences Act 1985 to take over private prosecutions; 
  • in some cases, the private prosecutor must seek the consent of the Attorney General or of the DPP before the commencement of proceedings.

In principle, there is nothing wrong in allowing a private prosecution to run its course through to verdict and, in appropriate cases, sentence. The fact that a private prosecution succeeds is not an indication that the case should have been prosecuted by the CPS. Parliament has specifically allowed for this possibility by the way section 6 is constructed: there is no requirement for the CPS to take over a private prosecution.

However, there will be instances where it is appropriate for the CPS to exercise the Director's powers under section 6(2), either to continue the prosecution or to discontinue it.

The decision whther or not to take over a private prosecution should be made by the CCP (or Deputy CCP) or relevant Head of Casework Divisions.

Where the private prosecution requires extradition proceedings, prosecutors should follow the Legal Guidance on Extradition.

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How the CPS may find out about a private prosecution

The private prosecutor is not under a duty to inform the CPS that a private prosecution has commenced. The CPS may therefore find out about a private prosecution in one of the following ways: 

  • where the private prosecutor, or a representative of the private prosecutor, asks the CPS to take over the prosecution; 
  • where the defendant, or a representative of the defendant, asks the CPS to take over the prosecution; 
  • where extradition is required and the Home Office (directly or indirectly) refers the private prosecutor, or a representative of the private prosecutor, to the CPS;
  • where a justices' clerk refers a private prosecution to the CPS under section 7(4) of the Prosecution of Offences Act 1985, because the prosecution has been withdrawn or unduly delayed and there does not appear to be any good reason for the withdrawal or the delay; 
  • where a judge sends a report to the CPS; 
  • where the CPS learns of the private prosecution in another way, for example, from a press report.

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When the CPS finds out about a private prosecution

Where the CPS receives a specific request to intervene in a private prosecution, you should contact the private prosecutor and invite them to supply you with a complete set of the papers they intend to use to support their prosecution. In addition, you should separately contact the defendant and invite them to let you have a copy of any papers which have been served on them by the private prosecutor and invite them further to provide you with any other information they are prepared to disclose which may assist you in the decision-making process. This may be information about their defence or about any relevant public interest considerations: the defendant is, of course, not obliged to provide anything to you at all but they should be given the opportunity to do so. You should notify each party that you have written separately to the other party.

You should ask both parties to supply any information within 14 days and you should advise each that you will base your decision to intervene on the material they choose to supply.

In all other cases, you should adopt the procedure above if, on the available information, there may be a need for the CPS to take over the prosecution.

Where the private prosecution in question is one brought by another public authority which is a signatory to the Prosecutors' Convention, then you should follow the principles of liaison set out in that document. See Relations with Other Prosecuting Agencies.

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Notification to the Special Crime and Counter Terrorism Division

You should inform the Special Crime and Counter Terrorism Division of any private prosecution that has been referred to you by emailing the private prosecutions email account, stating your Area and the court centre. Please state the proposed course of action in the case, before a decision is communicated to any or all of the involved parties.

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When to take over and continue with the prosecution

You should take over and continue with the prosecution if the papers clearly show that: 

  • the evidential sufficiency stage of the Full Code Test is met; and 
  • the public interest stage of the Full Code Test is met; and 
  • there is a particular need for the CPS to take over the prosecution.

All three elements outlined above must be satisfied before the CPS takes over and continues with the prosecution.

The final consideration is designed to cover the situation where, for whatever reason, the investigative authorities with which the CPS usually deals have not brought the case to the CPS' attention and yet it is a case that merits the prosecution being conducted by a public prosecuting authority rather than by a private individual. This may be because, for example, the offence is serious; there are detailed disclosure issues to resolve; the prosecution requires the disclosure of highly sensitive material or the conduct of the prosecution involves applications for special measures or for witness anonymity. This list is not exhaustive.

It is also necessary to consider whether or not the case is of a type that the CPS normally conducts following a police investigation.

All these and any other relevant factors must be weighed together in order to determine whether there is a particular need for the CPS to take over the prosecution. The existence of one factor does not necessarily mean that the prosecution must be taken over.

In cases where you decide that taking over a private prosecution in order to continue with it is the appropriate course of action, then, unless there are exceptional circumstances, you should write to both the private prosecutor and the defendant explaining the reasons for your decision.

Where you decide to take over a private prosecution which involves extradition proceedings, you should proceed in accordance with the CPS Legal Guidance on Extradition.

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When to take over a private prosecution in order to stop it

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.

However, even if the Full Code Test is met, it may be necessary to take over and stop the prosecution on behalf of the public where there is a particular need to do so, such as where the prosecution is likely to damage the interests of justice. Examples include: 

  • cases where the prosecution interferes with the investigation of another criminal offence; 
  • cases where the prosecution interferes with the prosecution of another criminal charge; 
  • cases where it can be said that the prosecution is vexatious (within the meaning of section 42 Supreme Court Act 1981, as amended by section 24 Prosecution of Offences Act 1985), or malicious (where the public prosecutor is satisfied that the prosecution is being undertaken on malicious grounds);
  • cases where the prosecuting authorities (including the police, the CPS or any other public prosecutor) have promised the defendant that he will not be prosecuted at all (a promise of immunity from prosecution): Turner v DPP (1979) 68 Cr. App. R. 70. This does not include cases where the prosecuting authorities have merely informed the defendant that they will not be bringing or continuing proceedings; 
  • cases where the defendant has already been given either a simple caution or a conditional caution for the offence (which remains in being), and the simple caution was appropriately given in accordance with Home Office cautioning guidelines, or the giving of the conditional caution was in accordance with the Director's Guidance on Conditional Cautioning.

The policy in intervening in private prosecutions when there is no case to answer, or where the public interest factors against the prosecution outweigh those in favour, is lawful, but should be applied to each charge individually: R v DPP Ex Parte Duckenfield; R v SAME Ex Parte Murray; R v South Yorkshire Police Authority and Another Ex Parte Chief Constable of South Yorkshire Police [2000] 1 WLR 55; and Raymond v Attorney General [1982] 75 Cr. App. R. 34.

In cases where you decide that taking over a private prosecution in order to stop it is the appropriate course of action, then, unless there are exceptional circumstances, you should write to the private prosecutor explaining the reasons for your decision.

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When not to take over a private prosecution

You should not take over a private prosecution if the papers clearly show that: 

  • the evidential sufficiency stage of the Full Code Test is met; and 
  • the public interest stage of the Full Code Test is met; and 
  • there is no particular need for the CPS to take over the prosecution (either to stop or continue with the prosecution).

In cases where you decide that not taking over a private prosecution after receiving a specific request to intervene is the appropriate course of action, then, unless there are exceptional circumstances, you should write to both the private prosecutor and the defendant explaining the reasons for your decision.

It should be noted that the Attorney General has the power to enter a nolle prosequi to stay proceedings in the Crown Court at any stage, and may receive such requests to do so in cases where the CPS has decided not to take over a private prosecution. In such circumstances, the Attorney General's Office will require a full briefing setting out the reasons for not taking over the private prosecution in order to stop it.

The stages of the process outlined in the various sections above are summarised here in a flow chart.

Is the evidential stage of the Full Code Test met?

  • If no, take over and stop the prosecution.
  • If yes, is the public Interest stage of the Full Code Test met?
    • If no, take over and stop the prosecution.
    • If yes, is there a particular need to take over the prosecution in order to continue it?
      • If yes, take over and continue with the prosecution.
      • If no, is there a particular need to take over the prosecution in order to stop it?
        • If no, do not take over the prosecution.
        • If yes, take over and stop the prosecution.

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Taking over proceedings after committal/sending

It may be that the first time you come to learn of a private prosecution is when the case has been committed/sent for trial. Committal or sending indicates an acceptance by the court that the prosecution has established a prima facie case, unless there is a material weakening of the evidence which was available to the court at that stage.

In any private prosecution case that is drawn to your attention at this stage, you should follow the principles set out above under the relevant section.

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Appeals against conviction

The CPS will normally take over proceedings in these circumstances since it is generally in the public interest that the integrity of a conviction is maintained.

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When to take over and not contest an appeal

The CPS will always take over and not contest an appeal if: 

  • There is clearly no case to answer. Since there has been a conviction, there will be few - if any - cases in this category. Where, however, the conviction is obviously unsafe, you should offer the appellate court whatever assistance can be given without resisting the appeal. 
  • The prosecution is clearly likely to damage the interests of justice. This ground will often not be relevant by the time a case reaches appeal stage, since the damage will already have been done at trial stage. It might be appropriate on occasion, however: for example, where there is an appeal against conviction on the ground that the prosecution have wrongly failed to disclose sensitive unused material.

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When not to take over an appeal

The CPS will not take over an appeal against conviction where it appears that the prosecution would not have passed the public interest stage of the Full Code Test. To do so would mean that the CPS would be seeking to uphold a conviction that should not have been obtained. You could not concede the appeal on the ground that a prosecution had not been needed in the public interest, since the question of the public interest is not one that the appellate court can consider.

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Appeals by the private prosecutor

If there is an appeal by the prosecutor and the CPS is asked to take over the appeal, you should do so if an important point of law is involved, but not otherwise.

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Police Officers

Where a private prosecution is commenced by a police officer who is the victim, the principles set out in this guidance will apply.

If a police officer, not being the victim, commences a private prosecution in order to challenge a police or a CPS decision, the CPS will normally take over the prosecution since this kind of action is likely to damage the interests of justice. The case will be discontinued if on review it does not meet the Full Code Test.

You must ensure that any decision is taken in the full knowledge of all that has passed between the police and the defendant at the time when the police were originally investigating the alleged offence. You will want to know, for example, whether the police indicated to the defendant that there would be no prosecution.

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Re-institution of Proceedings

CPS policy about when to re-institute proceedings is summarised at paragraphs 12.1-12.3 of the Code for Crown Prosecutors and is based on an undertaking given to the House of Commons on 29 March 1993 by the Attorney General. The undertaking does not apply to private prosecutors, who are therefore generally free to start a private prosecution after a decision by the police or CPS not to prosecute or to stop a prosecution.

The CPS will not, therefore, take over a private prosecution simply because it was started after the police had decided not to prosecute, or the CPS had stopped its prosecution. In three kinds of case, however, the CPS will take over a private prosecution and will then apply the re-institution guidelines (as well as the Full Code Test) to decide whether or not to continue the prosecution: 

  • where a decision has been taken by the CPS to discontinue or not proceed with a prosecution and a subsequent review of the case papers (with or without fresh evidence) leads to the conclusion that the evidence does afford a realistic prospect of conviction; 
  • where the defendant was conditionally cautioned or cautioned for the offence, but the conditional caution or caution was wrongly given in that the criteria for a caution had not been met or in that the decision to caution was one that no reasonable person could have taken: in such cases, it is appropriate to cancel the conditional caution or caution, effectively "wiping the slate clean" and re-start the proceedings; or 
  • where the defendant was conditionally cautioned or cautioned for the offence and the conditional caution or caution was given on the basis of false information about the offence, or the defendant, which was provided or procured by the defendant.

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DPP Consent Cases

For some offences, the private prosecutor needs the consent of the DPP to the prosecution. If the proposed prosecution passes the Full Code Test, the CPS will then take over the prosecution. If the proposed prosecution fails the Test, consent to prosecute will not be given.

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Rules on CPS Disclosure of Material to Third Parties

A private prosecutor, or an intending private prosecutor, or a defendant in a private prosecution, will sometimes ask you to disclose documents or information. The rules about CPS disclosure of material to third parties direct the way the CPS deals with this kind of request.

The right to bring a private prosecution does not confer on an intending private prosecutor a right of access to the statements, photographs, reports or other documents held by the CPS: R v DPP ex parte Hallas [1988] 87 Cr. App. R. 340. Nor would a defendant have a right to obtain documents from the CPS.

Those who provide material for the CPS are entitled to confidentiality in respect of such material, as it is not in the public domain: Taylor & Another v Director of the Serious Fraud Office and Others [1999] 2 AC 177.

Although the general rule is that the CPS should give disclosure whenever it is in the interests of justice to do so, it is unlikely to be in the interests of justice for the CPS to disclose case material to a potential private prosecutor if that material has been reviewed and is not in itself considered to be sufficient to pass the evidential stage of the Full Code Test. A possible exception to this is if the private prosecutor has separate evidence which, taken with that held by the CPS, may constitute sufficient evidence to provide a realistic prospect of conviction. However you should consider the principles set out in the Disclosure Manual when considering voluntary disclosure of documents and information held by the CPS (for example, the names and addresses of witnesses).

Any voluntary disclosure should be even handed between the parties and therefore any documents supplied to the private prosecutor at his or her request should also be supplied to the defendant and vice versa.

In relation to the CPS providing witness statements and reason for decisions see Guidance on Requests for witness statements from CPS staff.

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Summonses for material held by the CPS

Once there has been a committal or transfer, the Crown Court may grant a private prosecutor a witness summons to secure the production of relevant material from the police in order that the private prosecutor should be able to comply with his disclosure obligation to the defence: R v Pawsey [1989] Criminal LR 152.

There is no reason in principle why such a summons should not be granted after committal or transfer in respect of material held by the CPS. There is no reason why a magistrates' court should not grant a witness summons to secure the production of material relevant to a summary trial.

Where the CPS does not possess either the originals or copies of the witness statements or other documents requested, you should refer the enquirer to the person or body who does or who might possess what is sought (usually this will be the police). That will be the end of CPS involvement. You must not, for example, mediate with the police on behalf of an enquirer, and there is no power to direct the police as to what they should do. That does not, of course, prevent you from advising the police on a point of disclosure if asked to do so: see Guidance on Disclosure of Material to Third Parties.

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Prosecutor's Duty to Disclose Unused Material

If the CPS takes over a private prosecution, you have the usual prosecutor's duty to disclose unused material to the defence. Where the CPS has not taken over a private prosecution, the private prosecutor is under that duty: see the Disclosure Manual.  

Difficulties for the CPS will arise where the CPS has not taken over a private prosecution but is aware of the private prosecution, and is also aware that material evidence or information exists but the private prosecutor does not possess it. The CPS may not be able to disclose this information - either because the CPS is not in possession of it, or because there are rules, for example, those governing public interest immunity, that prevent disclosure. If the CPS is, or can be, in possession of the material, you must do one of two things: 

  • notify the private prosecutor and the defendant of the existence of the material and supply it on request if it is right for you to do so; or 
  • if the material is too sensitive for the first course of action, the CPS must take over the private prosecution.

In any case in which you are aware of unused material which has not been disclosed to the defendant, and which you cannot ensure is disclosed, and which would tend to exonerate the defendant or materially assist the defence, the CPS must take over the private prosecution.

When the CPS takes over a private prosecution because of difficulties over disclosure of material to the defendant, you will review the case in accordance with the Full Code Test and in the light of the disclosure issue. An application to the court may resolve the disclosure issue.

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Misconduct by the Private Prosecutor

On occasions when you examine papers in order to decide whether or not to take over the prosecution, and decide to allow the private prosecution to continue, you may come across misconduct by the private prosecutor. An example would be a failure by the private prosecutor to disclose relevant evidence to the defendant or a failure to disclose unused material in his possession to the defendant. In these cases, you must advise the private prosecutor of his or her disclosure obligation.

If you cannot then satisfy yourself that the private prosecutor has made proper disclosure (the CPS should ask the prosecutor to provide details of the items disclosed), you must inform the defendant of the failure. Since the private prosecutor has the unused material in his or her possession, the defendant should be able to obtain disclosure through an order of the court.

In general, the CPS will not take over a private prosecution because of misconduct or alleged misconduct by the private prosecutor. It is not the role of the CPS to discipline private prosecutors: it is for the courts to control private prosecutors. Where a court or a defendant asks the CPS to take over the case because of misconduct by the private prosecutor, you will examine the case to see whether it falls within one of the categories that would allow this course of action and take the case over only if it does.

There may be occasions when it will be appropriate for you to copy to one party or to the court correspondence that the CPS has had with the other party, so that all parties are aware of the position.

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Application for a Summons by a Private Prosecutor, where the CPS has already started proceedings

When the CPS is already pursuing what it considers to be the appropriate charges, a magistrate should be slow (in the absence of special circumstances) to issue a summons for a more serious charge on the application of a private prosecutor, because such a course may be oppressive, and the possibility of the DPP taking over the private prosecution is a relevant factor: see R v Tower Bridge Metropolitan Stipendiary Magistrate Ex Parte Chaudhry [1993] 99 Cr. App. R. 170.

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Procedure

If it appears that the case might be one that the CPS should take over, you should ask the private prosecutor to pass the evidence and documents to you so that you can decide whether the prosecution should be taken over; this also includes asking the police for any information or evidence that they may have.

In practice it is unlikely that private prosecutors will refuse to hand over papers. If this does happen, however, you will not be able to compel the private prosecutor to do so unless the CPS takes over the private prosecution. The law is summarised in the Rules on CPS Disclosure of Material to Third Parties section (with the difference that it is the intending prosecutor who is seeking documents from the CPS; the courts are likely to apply the same principles if the CPS is seeking documents from a private prosecutor).

Sometimes the papers will not contain enough evidence or information for you to be able to decide whether or not to take over the prosecution. If this happens, you will ask the police to investigate the case if it seems that further investigation is necessary.

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