Introduction 

Proceedings brought against individuals by way of a Private Prosecution can be immensely stressful and worrying for those prosecuted. A Private Prosecution carries the same penalties as a Crown Prosecution Service case upon conviction and can result in a criminal record and potential prison time, depending upon the offence alleged and its seriousness. 

However, my experience is that a lot of Private Prosecutions or vexatious and without merit, and if properly defended can be defeated without recourse to a trial. The process of bringing a Private Prosecution is not a difficult one, and this encourages many people who have been unable to secure justice by conventional means to attempt to pursue a Private Prosecution. It follows that as the complainant may have not had success making complaints to the Police and the Crown Prosecution Service, there is often a fundamental problem or flaw in the Private Prosecutor’s case. It is therefore important that such cases are robustly and effectively defended. 

The right to bring a Private Prosecution is established by statute by section 6(1) of the Prosecution of Offences Act 1985. There are many firms of solicitors who purport to be experts in bringing Private Prosecutions, and many Private Prosecutions are brought by individuals without legal assistance.

In this article I will look at the process of issuing a Private Prosecution and ways in which such cases can be successfully challenged and defended. 

The summons

The Courts will analyse applications to bring Private Prosecutions with a degree of scrutiny, and there are many opportunities for such cases to be knocked out before they reach trial. The first stage of a Private Prosecution is the application for, and granting of a summons in the Magistrates Court. The defence may have an opportunity to make representations as to whether a summons should be granted against them. If a summons has already been granted, then it is open for the defence to challenge the granting of the summons by way of asking the Court to analyse the summons application to make sure that the application was bought properly and that the proper processes and procedures were followed. The defence will also have an opportunity to comment upon whether any statutory time limits have been breached. If a summons is not granted or overturned or a time limit has not been complied with then the case cannot continue. 

Abuse of process

Those defending Private Prosecutions will also want to look to see as to whether a case is an abuse of the process of the Court. An abuse of process application can be made at any stage in procedures and gives the defence an opportunity to challenge the proceedings on two separate limbs, these are whether the defendant can be granted a fair trial and whether the proceedings are an affront to the Court's sense of justice and propriety. Examples of grounds of abusive process can be matters such as delay, failure to make relevant disclosure, failure to preserve evidence, the fact that a Prosecution is vexatious, or that there has been an unfair manipulation of the Court process.

Discontinuance 

Another step that can be taken in an attempt to stop a Private Prosecution is referring the Private Prosecution to the Crown Prosecution Service for potential discontinuance. This is done by way of contacting the Crown Prosecution Service area within which the case has been brought and making an application for the Prosecution to be taken over and stopped. The CPS will then review the case and any representations made by the defence based upon the full code test contained within the code for crown prosecutors. If the CPS decide that the case is vexatious, or if the relevant parts of the full code test are not met then they have the power to take over and discontinue the Private Prosecution under section 6(2) of the Prosecution of Offences Act 1985. This would bring the end to any potential case.

Fighting the case

If none of the above work, then the matter can be contested at trial and in the build up to trial. This means that the defence will be able to make various applications relating to disclosure of materials and legal arguments relating to the admissibility of evidence to try to reduce the scope of the evidence in the Private Prosecution. Often in cases where there is a Private Prosecution, the motive for the Prosecution and the motive of the prosecutor is questioned and the Private prosecutor will be called to account for why the case has been brought.

Conclusion (and costs!)

In short, there are a myriad of different options available to defend a Private Prosecution, if but one of them are successful then the Private Prosecution fails. If this occurs then the defendant is found not guilty of the offence and that brings an end to matters. Unlike in a state Prosecution, if a Private Prosecution is unsuccessful then the defence may be entitled to recoup the costs of defending the case either from central funds or directly from the Private prosecutor. If the Prosecution is found to be vexatious or an abuse of the process of the Court, then it is likely that costs will be awarded directly against the Private Prosecution under the Prosecution of Offences Act 1985. An example of a high profile case of this sort where such costs were awarded is in the case of Marcus Ball vs Boris Johnson, where Mr Ball attempted to bring a crowdfunded Private Prosecution under the moniker of #Brexitjustice, his Private Prosecution was unsuccessful and he was ordered by the Court to pay 6 figure sums back to Mr Johnson's legal team for their expenses.

Quentin Hunt is a criminal defence barrister of 25 years’ experience, he has acted on both sides of the fence having successfully both brought and defended many Private Prosecution cases. Quentin accepts instructions both through solicitors and directly from members of the public. If you face a potential Private Prosecution, or a Private Prosecution has been brought against you, then it is important that you seek specialist legal advice at an early stage. You can contact Quentin for a free, no obligation discussion about your case in such circumstances.