Should I pursue a private prosecution? 10 things you should consider

Any UK citizen or organisation has the right to bring a private prosecution against another party if they’ve been the victim of crime. It has been a part of our constitution since the 19th century, enshrined in British law as part of the Prosecution of Offences Act 1985.

Budgetary cuts to police forces and the judiciary system have caused private prosecution to grow in popularity over the past decade.

Whether you’re acting as an individual or on behalf of an organisation, there are several key factors you must consider carefully before pursuing a private prosecution. Here, we examine 10 of the most significant.

10 factors to consider before starting a private prosecution

1. Criminal or civil?

Private prosecutions involve a criminal investigation and are dealt with in the same way as if the state were bringing a case. However, there may be circumstances where a civil remedy may be preferable. Deciding on the best approach will depend on the nature of the case and the desired outcome.

Criminal

Broadly speaking, criminal law looks at offences against an individual or collective, but with an increased focus on offences that have a negative effect on wider society; those where additional punitive measures are required. Examples of offences that fall under the umbrella of criminal law include fraud, drug dealing, sexual offences, and murder.

Because criminal law covers such a broad spectrum of offences, the penalties for convicted parties are equally diverse. Depending on the conditions stipulated by the applicable legislation, this may include community orders, fines, or, in the most serious cases, custodial sentences.

However, the burden of proof in criminal trials is higher than in civil cases, as the defendant's guilt must be proved beyond all reasonable doubt.

Civil

The primary concern of civil law is protecting the rights of and property of individuals and corporate entities from offences that might not be covered by criminal law.

Typical cases that fall within the remit of civil law include settling disputes between employees and their employer, family law (divorce, custody etc.), breaches of contract, discrimination, and personal injury claims as the result of negligence. The biggest difference between the two is that, under civil law, the defendant won't receive a custodial sentence if found guilty of wrongdoing — fines and compensation are the most common punitive measures.

2. Initial evidential considerations

Before considering a private prosecution, three things must be established:

• Firstly, that a substantive offence has been committed. There must be tangible evidence to support an allegation, such as witnesses to the offence, documentary evidence, and other material. Without this, a criminal prosecution cannot be commenced
• Secondly, the suspect's identity must be known or discovered through investigation
• Thirdly, an element of the offence must have been committed in the UK

Ensuring the evidence is gathered in an admissible format, and the unused material is retained and scheduled correctly from the very outset of the investigation, will provide the most solid foundation on which to build a successful prosecution.

Once the evidential material is gathered, this will be reviewed by specialist lawyers to ensure there is a realistic prospect of conviction against each defendant, and that bringing a prosecution is in the public interest. This is the same test as the Crown Prosecution Service (CPS) apply in a state run prosecution.

3. Financial implications

There are various costs involved with any private prosecution, although these often vary from case to case.

The nature and complexity of each case will determine the time it takes to gather evidence and complete an evidential case file. Larger, more complex cases will therefore increase the costs of investigation and prosecution. However, a case should never be commenced if justice isn't the prosecutor's primary motive. Using private prosecutions in an attempt to leverage a civil claim, for example, will likely lead to an abuse of process argument and, potentially, costs being awarded against the private prosecutor.

However, litigation funding is being explored as a potential means of assisting in the outlay of costs. Furthermore, the reasonable costs of the prosecution, following the service of summons, can be recovered from Central Funds — provided the case is bought correctly. This can be recovered even if the defendant is acquitted.

The Prosecution of Offences Act 1985 contains a full breakdown of the way compensation is distributed in a private prosecution, covering any and all eventualities.

4. Time

Arguably the biggest consideration for any individual or enterprise considering a private prosecution is time.

Depending on the nature and complexity of the case, it can take time to gather evidence for your legal team to review — particularly if there are multiple witnesses, high levels of documentary evidence, and specialist analysis (such as forensic accountancy and digital forensics) is required to understand the nature of the case. In some cases, this can take several weeks, if not months.

From issuing the summons, through first appearance at court and fixing a date for the trial, it can take up to a year for the case to come to trial; depending on the availability of the court.

However, given the caseload of the police and CPS, running a private prosecution can still be considerably quicker than a state-run investigation, where in some cases, obtaining a charging decision alone can take months. Furthermore, if an exhaustive investigation is conducted, and overwhelming evidence gained from the outset, this will often lead to early guilty pleas. This results in an earlier conviction and sentencing, and provides swifter access to justice.

5. Police priorities and resources

Ideally all cases and prosecutions would be bought by law enforcement and the CPS. However, owing to budget and resource cuts to both institutions over recent years, the police are unable to investigate as many cases as they would like.

With limited resources at their disposal, in terms of both money and front-line officers, there is a greater focus on preventing and detecting violent crime, terrorism, and offences against individuals — justifiably so. Consequently, fraud, particularly against corporate entities can be considered lower priority, apparently 'victimless' crimes. As such, these cases are often not investigated further and therefore never make it into the judicial system.

This problem is exacerbated by the issues of recruiting and retaining detectives in the Criminal Investigation Department (CID), which was labelled a "national crisis" by Her Majesty’s Inspectorate of Constabulary (HMIC) review. This reduction in capacity, combined with the increasing volume of material in cases as a result of modern technology, means that some cases are at risk of being 'screened out' at an early stage.

What this means for victims is that private prosecutions provide a real alternative for victims to seek justice

6. The Crown Prosecution Service

Under specific circumstances, the Crown Prosecution Service has the right to assume control of any privately prosecuted case, either to take over the case and proceed with it if that is deemed the most appropriate course of action, or to take over the case and discontinue it.

These circumstances are relatively far-reaching. In the latter, this is normally at the request of the defence, and will more often than not be due to the fact that a case has failed to meet the standards outlined in the Code for Crown Prosecutors.

The main thrust of the code states that there must be a realistic prospect of conviction for the case to proceed. Moreover, it must be in the public interest. However, the CPS can also stop a prosecution if:

• It interferes with the prosecution of a separate criminal offence
• The defendant has received a caution for the same offence
• The prosecution is considered to have been initiated with malicious intent on the part of the private prosecutor

If the CPS does not make this decision independently, the defendant can make an application to the CPS to take over the case if they feel the prosecution breaches these rules.

In order to prevent cases being discontinued, it is vital to ensure that that the case is bought correctly and with the right motivation; the investigation is conducted in a fair, open and transparent way that adheres to the strictest standards of the justice system; and you work with experienced and trusted investigation agencies and law firms who specialise in bringing criminal prosecutions.

7. Limited powers

Given the issues outlined above, private prosecutions will continue to play an increasingly prominent role in the modern criminal justice system when it comes to supporting victims of crime. However, it is important to remember that investigations conducted independently of the state have their limitations.

For example, there is no power of arrest, search warrants cannot be obtained, and obtaining data from third parties may be not allowed. That being said, experienced investigators can use existing legislation to obtain information from third parties, and once proceedings are underway, court orders can be made for disclosure of additional information to support the court.

In order to obtain court orders, sufficient evidence must already exist to make these applications, which are generally obtained once the matter reaches the Crown Court. Working alongside experienced investigators and counsel will be able to guide the private prosecutor through this process.

8. Is it in the public interest?

When initiating a private prosecution, consider your motive. Are you seeking justice to protect others from criminal activity? Or are you pursuing a personal vendetta?

Answering this question isn’t only about gauging your moral compass; rather it establishes the validity of your prosecution in terms of public interest. Furthermore, it prevents a defence application for an abuse of process, which could result in the entire case being discontinued.

Indeed, the CPS considers this fundamental to establishing the legitimacy of a prosecution. It reserves the right to dismiss a case if there are grounds to believe that the reason for a prosecution is malicious in intent or can be viewed as a misuse of the judicial process.

9. Location of the offence

In purely practical terms, for a private prosecution to be accepted, at least part of the offence must have been committed in the UK. For large organisations, operating across multiple countries and continents, that have lost considerable sums of money as a direct result of criminal activity, this is especially important when deciding on the best course of action.

That notwithstanding, owing to the fact that fraud and similar crimes often have an international reach, this condition isn't quite as restrictive as it may at first appear. For example, money obtained through fraudulent activity overseas, if laundered through the UK, could justify commencing a private prosecution. Early consultation with investigators and specialist law firms will be able to advise on whether commencing a private prosecution is feasible, preventing wasted costs.

10. Finding a trusted partner

With so much to consider and plenty at stake, finding the right investigating body and law firm to guide you through the process is vital.

Conducting the criminal investigation and prosecution correctly from the outset is absolutely vital and will prevent issues arising further down the process. Having an experienced, independent, and impartial investigation firm, working closely with specialist lawyers from the outset, will help ensure the process is conducted correctly and efficiently, saving time and costs.

The investigation company will be acting as 'officer in the case' and 'disclosure officer', conducting the investigation to the highest standards required — taking witness statements, gathering evidence, and ensuring crucial disclosure obligations are adhered to. A reputable and specialist law firm will be carefully reviewing the material, assessing the evidence impartially, and making applications to the court. Trusted trial counsel will be presenting the case in court.

Choosing the right team, and instructing them from the outset, will give the very best chance of success. Which makes organisations, such as the Private Prosecutors' Association, a vital resource for those working on the front lines.

Tracking the rise of private prosecution

Undertaking a private prosecution can be a daunting experience. However, with an increasing number of individuals and firms relying on privately-funded prosecutions to obtain justice, private prosecution continues to establish itself as a perfectly viable alternative to traditional litigation.