In the UK under section 6 of the Prosecution of Offences Act 1985 anyone has the right to launch a private prosecution, provided it passes the full code test. The full code test simply asks if there is enough evidence for there to be a realistic chance of conviction and if it is in the public interest to prosecute the case.

Our firm has managed private prosecutions from multi million pound frauds brought by a victim company to perverting the course of justice brought by a wronged individual.

If you need specialist, experienced legal advice on a provate prosecution matter, are thinking of starting a private prosecution or are being privately prosecuted, please do get in contact.

Reasons why a private prosecution may be appropriate

• High value – For significant or high value claims for fraud or forgery;
• Policy reasons – Where a business has a policy of taking the strongest possible action for any dishonesty or fraud;
• Maintaining trust – charities or other not-for-profit organisations will often want to ensure that they take action to maintain ethical high standards or to comply with their charitable objectives;
• Intellectual Property (IP) – as IP is so critical to almost all businesses, taking the toughest possible action for any criminal infringement of IP rights sends out a message;
• Reputational reasons – for example, where there has been perjury in court and the victim of that perjury starts a private prosecution thereafter.
• Blackmail
• Investment scams – scams of this type are increasingly common and whilst taking action is often fraught with difficulty, not least in recovering money, these types of private prosecutions may also incorporate a group action.

Why prosecute yourself and not via the Police or CPS?

The police are busy and whilst every crime should be investigated and where appropriate, charges brought, in reality many crimes are not prioritised.

By starting a private prosecution, this gives a private claimant a degree of control and the potential to obtain evidence and momentum which may then result in the CPS becoming involved after a private prosecution has begun. It also ensures that you have a team of lawyers at the level you desire who are dedicated to maximising the prospects that you get the result you want.

It is generally advisable to notify the CPS of the case and to keep them informed. In reality, the chances of the CPS actually taking over a private prosecution at public cost is a rare occurrence where that case has merit.

Initial considerations and process

• Are you likely to be able to obtain strong evidence?
• Should you notify the police or CPS before starting a criminal private prosecution? Generally yes.
• If you can obtain a good evidential starting point remember that it may sometimes be better to involve the police or any regulators as they will have stronger investigatory powers.
• Some if not all of the legal fees involved in bringing a private prosecution can usually be recovered at the conclusion of the case. This applies even when the prosecution does not result in a conviction where the fees are recovered from public funds. When the case is successful, costs would be sought against the Guilty party.

Private prosecutions can be expensive, time consuming and may not be successful

The cost of a private prosecution can be relatively modest in a straightforward case where the Defendant pleads guilty. A complex case that proceeds to a trial can be very expensive.

Understanding that you may not win, you may not get all of your legal costs back and having a clear strategy are the starting point.

With then higher standard of proof for criminal law cases over civil law cases, it will be essential to gather evidence to meet that standard. This will include:

• Obtaining the necessary standard of evidence from multiple witnesses;
• The appropriate documentary evidence including interrogation of IT systems;
• Often expert analysis and evidence will be required, for example forensic accountants and specialists in digital forensics, which can be expensive.

One potential advantage of a criminal law private prosecution over a civil claim is speed. A criminal summons through to trial generally will take about a year, whereas a disputed civil claim may take 2-3 years to reach trial.

Specialist lawyers for Private Prosecutions

David Roy, Partner in our Birmingham Office is highly experienced in criminal law and also civil disputes. David is an ideal choice for advice on a legal dispute generally and whether a private prosecution is your best option. He meets clients in our Central London Office by arrangement as well as his main location in Birmingham.