A private prosecution allows an individual, business or organisation to bring criminal proceedings rather than relying on the police or another public authority to prosecute.
Private prosecutions are increasingly prominent in England and Wales. They can provide an alternative where a police investigation has stalled or no action has been taken, but can also be used strategically to protect individuals, businesses, assets or intellectual property and deter repeated criminal behaviour.
We advise both clients considering bringing a private prosecution and individuals or businesses facing one, from assessing the evidence and likely costs through to conducting or defending court proceedings.
When and why are private prosecutions used?
Private prosecutions can provide an alternative where police or regulatory investigations have stalled, no further action has been taken or a victim wants to pursue serious criminal conduct independently. They are also used strategically by businesses and organisations where prosecution can protect assets, employees or intellectual property and provide a clear deterrent against repeated offending.
We can advise and represent you on a private prosecution in a wide range of offences, including:
racially aggravated and hate-related offences;
assault and other offences against individuals;
employee theft and dishonesty;
fraud and false accounting;
counterfeiting and intellectual property offences;
retail theft and organised offending;
Trading Standards and consumer offences.
Some offences have additional procedural requirements or require consent before proceedings can be brought.
Why instruct Taylor Rose?
Private prosecutions require criminal litigation expertise, careful investigation and strategic judgement. It is important to establish not only whether an offence may have occurred, but whether there is sufficient admissible evidence to justify proceedings and whether prosecution is the right way to achieve your objectives.
Our criminal and regulatory lawyers act for both private prosecutors and defendants, giving us insight into how a proposed prosecution may be challenged as well as the weaknesses which may be available to the defence.
We can:
assess whether there is sufficient evidence to proceed;
review what the police or another authority has already done;
identify evidence which is missing or needs preserving;
liaise with police where an existing investigation has stalled;
work with private investigators and specialist experts;
prepare and conduct a private prosecution;
manage disclosure and other prosecution obligations;
deal with potential CPS intervention;
advise on costs and potential cost recovery;
defend individuals and businesses facing private prosecutions; and
advise on related civil proceedings, deterrence and publicity.
Crucially, we can advise before you commit substantial time and money, including whether further investigation or another legal route is more likely to achieve your objective.
Reasons to pursue a Private Prosecution
Cost-effectiveness - private prosecutions can be more affordable than civil claims, especially for companies with budgetary constraints.
Deterrence - criminal prosecutions can deter future offences with the threat of imprisonment, fines, and a criminal record.
Publicity - successful prosecutions can be publicised, enhancing deterrence.
Compensation - in certain cases, private prosecutors may seek compensation for losses incurred due to the crime.
Quicker than civil proceedings - a private prosecution typically starts moving through the Magistrates' Court system within a few weeks after the issuing of a summons. Depending on various factors, the case may conclude within 6-9 months.
Control - private prosecutions allow individuals and companies to control the pace of the investigation and prosecution.
Justice - pursuing a private prosecution can be a way to achieve justice and closure, especially when public authorities fail to act.
How does a private prosecution work?
The first stage is to assess the available evidence and determine whether further investigation is required.
This may involve reviewing documents and electronic evidence, obtaining witness statements and working with private investigators, forensic accountants or other experts.
An application can then be made to the Magistrates' Court for a summons.
A private prosecution is a criminal proceeding. The prosecutor therefore assumes important responsibilities concerning evidence, unused material, disclosure, fairness to the defendant and criminal procedure.
Can the CPS intervene?
Yes. The Director of Public Prosecutions can take over a private prosecution.
While it's possible for the CPS to intervene in a private prosecution, this is typically only done in exceptional circumstances, such as when there is a public interest in the case. In most cases, the CPS will only intervene if the private prosecutor requests their assistance or if the case is likely to result in a conviction.Following review, the CPS may allow the prosecution to continue privately, take it over and continue it, or take it over and discontinue it.
A private prosecution should therefore be prepared from the outset on the assumption that the strength, fairness and justification for the case may be independently scrutinised.
Defending a private prosecution
We also represent individuals, directors and businesses facing private prosecutions.
As well as defending the underlying criminal allegation, we can examine:
weaknesses or gaps in the evidence;
how the investigation was conducted;
disclosure failures;
evidence which has been overlooked;
whether proceedings are being pursued for an improper purpose;
whether the CPS should be asked to review and take over the prosecution;
abuse of process arguments where appropriate; and
any underlying civil or commercial dispute.
Early advice can be particularly important where criminal proceedings are being threatened alongside demands for payment or settlement.
Can private prosecution legal costs be recovered?
In certain cases, the court may order the payment of expenses from central funds to compensate a private prosecution claimant for costs incurred in indictable offence proceedings. However, this is not guaranteed and depends on the circumstances.
