When can the CPS assume control of a private prosecution?
 Simon Davison

Simon Davison

When can the CPS assume control of a private prosecution?

Most criminal cases are investigated by the police and prosecuted by the Crown Prosecution Service (CPS). In a private prosecution, it is often the case that neither body will be involved. That said, careful consideration must still be given to the CPS, and procedures carefully adhered to, when starting a private prosecution.

Since its foundation, the main purpose of the CPS has been to keep the investigation and prosecution of crime separate, ensuring that cases tried in England and Wales are conducted fairly and impartially.

To that end, it falls within the remit of the CPS to assume control of a privately initiated prosecution – whether that is to continue or discontinue the case – if they deem it within the interests of justice to do so.

Naturally, as private prosecution becomes increasingly commonplace, those seeking legal redress in the UK independent of the state authorities may be anxious to know under what circumstances the CPS may exercise their right to assume control of a private case.

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Circumstances under which the CPS can assume control of a case

The right to take over a private prosecution is preserved under section 6(2) of the Prosecution of Offences Act 1985.

Broadly speaking, there are two ways in which this might come about.

Firstly, the Director of Public Prosecutions (DPP) or CPS may assume direct control of a case. They may then choose to continue it on behalf of the private prosecutor, suspend proceedings while more evidence is gathered, or dismiss a case completely if they feel it is incumbent upon them to do so.

Alternatively, the CPS may receive a formal request from the defence to take control of private criminal proceedings. Generally, this will come in the form of a request to discontinue the case.

Direct intervention

The private prosecutor is under no legal obligation to report to the CPS before initiating proceedings. However, the CPS may assume control of a private prosecution directly — to suspended or discontinue it — if there is a compelling reason to do so.

These include instances in which the case:

  • Fails to meet either stage of the Full Code Test
  • Is considered vexatious and would constitute an abuse of process if continued
  • Interferes with a separate criminal investigation
  • Involves the disclosure of sensitive material
  • Requires special measures relating to witness anonymity

Additionally, the CPS may decide to take charge of a case if it discovers the prosecution has failed to disclose relevant material that could assist the defence. At this point, the CPS will review the case against the precepts laid out in the Full Code Test to verify whether or not the prosecution can still go ahead.

The same rule applies in situations where the defendant has already been promised immunity by the prosecuting authorities or has received a caution or conditional caution for the same offence.

In the event the CPS decides to terminate proceedings, it will usually contact the private prosecutor explaining the reasons behind their decision. However, the prosecutor may be able to request a review of the decision under the Victims’ Right to Review Scheme.

If the case meets both the evidential sufficiency and public interest stage of the Full Code Test, and doesn’t fall foul of any of these criteria, then it is left to the discretion of the CPS whether it will permit private proceedings to continue unhindered or assume control of the case directly.

Should the CPS deem it necessary to take over a private prosecution, the prosecutor will be asked to pass all evidence, along with any other relevant documents, to the CPS. Information held by the police that may have a bearing on the case must also be submitted to the public prosecuting authorities.

In answer to a request

Aside from assuming direct control of a case, there are situations wherein the CPS might receive a specific request to take over a private prosecution – from either the defendant or one of their representatives. The CPS will then decide whether assuming control is in the best interests of the parties involved.

To aid in the decision-making process, the CPS will contact the prosecutor and ask them to supply a full set of papers appertaining to the case. That includes both the documents that form the basis of the prosecution and any relevant but unused material generated by the independent investigator that could assist the defence or undermine the prosecution. The defendant will be contacted separately and invited to submit any papers served on them by the prosecution, along with any other information that may prove relevant to the case.

One of the main reasons the defendant (or the court) might ask the CPS to intervene in a case include misconduct on the part of the prosecution – particularly as the CPS will not investigate alleged misconduct on its own volition. Misconduct in the legal sense covers everything from basic administrative errors, to disclosure faults and other omissions. Deferring to an experienced investigation and disclosure team can help you navigate these pitfalls.

Once a decision has been reached by the reviewing lawyer regarding the suitability of CPS intervention, it must be ratified by the Chief Crown Prosecutor, the Deputy Chief Crown Prosecutor, or the Head of Casework Divisions. It is then recorded in written form to ensure proceedings remain transparent.

Private prosecution in the UK

The circumstances under which the Crown Prosecution Service can exercise its right to assume control of a case should always be borne in mind before commencing private criminal legal proceedings. This is especially true today, with private prosecutions now firmly established as a viable alternative to state-funded litigation. 

That being the case, it is always advisable to trust in experienced investigators, specialist lawyers, and professional counsel when initiating private criminal proceedings. They help to ensure that your case is brought correctly, and proceedings are conducted fairly.

Download our comprehensive white paper to learn more about the rise of private prosecution, including in-depth discussion of the benefits and pitfalls associated with initiating private legal proceedings and the value it brings to individuals and organisations seeking justice in the UK.

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