Private Prosecution - Is this an option for you?

A private prosecution is a prosecution started by a private individual or organisation, such as the RSPCA, who is not acting on behalf of the police or other prosecuting authority. In short, anyone can bring a private prosecution. The right to do so is contained within section 6 (1) of the Prosecution of Offences Act 1985.

One of the primary advantages to a private prosecution is that they are usually quicker. This is because you control it and do not have to rely on the police or the CPS who may not view it as a high priority.

Whilst the right to bring a private prosecution is longstanding, there has been a growing increase in them in recent years. One notable case was the case of Ketan Surendra Somaia who was convicted at the Old Bailey for obtaining the sum of $19.7m by deception and was sentenced to eight years' imprisonment. The case was not brought by Crown Prosecution Service ("CPS") or Serious Fraud Office but by the primary victim, Muril Mirchandani.

The Advantages of a Private Prosecution

One of the primary advantages to a private prosecution is that they are usually quicker. This is because you control it and do not have to rely on the police or the CPS who may not view it as a high priority.

They can often be cheaper although this is very much dependent on the type of case. Fraud cases in particular can become expensive if there is significant evidence, whether experts are involved and whether the case proceeds to trial.

However, private prosecutions provide an excellent legal remedy to those where the police or the CPS have refused to investigate or prosecute a crime or where a state prosecution has failed.

The Risks of a Private Prosecution

There are a number of risks which you need to be aware of if you are considering bringing a private prosecution.

Firstly, there is the risk that the private prosecutor who is also the complainant/victim lacks the objectivity inherent in proceedings brought by state authorities. Further, there is no obligation on the private prosecutor to notify the police or CPS in advance of their intention to bring a private prosecution. However, it is advisable to do so otherwise:

  • The CPS may decide to take over the prosecution either to continue it or discontinue it;
  • The defence may argue that failure to do so is an abuse of process;
  • You may be less likely to recover the costs of the investigation if the CPS have not had the opportunity to commence a public prosecution first.

The private prosecutor is also under no obligation to determine whether the prosecution would be in the public interest. However, careful consideration should always be given as to whether a private prosecution alone is the best course of action. You do not want to be accused of abuse of process by any suggestions that you have acted purely out of self-interest.

Next Steps

If you are considering bringing a private prosecution you should take advice at the earliest stage. Your solicitor can advise you as to whether this is the best course of action and provides the safeguard needed to manage the associated risks.

For further information, please contact [email protected].