A prosecution is a form of legal proceeding in the criminal courts which involves the accusation that an individual has committed a criminal offence, ultimately with a view that he is prosecuted for it.
In contrast to prosecutions commenced by public prosecutors, such as the Crown Prosecution Service (CPS), a private prosecution is a prosecution commenced by a private individual (i.e. a citizen) who is not acting on behalf of a prosecuting authority such as the police. Most criminal offences in this jurisdiction are prosecuted by the CPS, the body which takes over all prosecutions instigated by the police. Other prosecutors include the Department of Work and Pensions, who typically prosecute individuals in relation to benefit fraud, and the Revenue and Customs Prosecutions Office, who prosecute tax offences.
…the CPS, acting under the powers of the DPP, has the power to discontinue a private prosecution.
Section 6(1) of the Prosecution of Offences Act 1985 is the statutory authority which provides individuals with the right to commence a prosecution in the criminal courts. This right, however, is not an unqualified one. In some cases, the private prosecutor must seek consent from the Attorney General or the Director of Public Prosecutions (DPP) before the prosecution can begin. In any event, the DPP always has the power to take over a private prosecution once it has commenced. However, there is no requirement for him to do so. Equally the CPS, acting under the powers of the DPP, has the power to discontinue a private prosecution.
Indeed, it could be said that the power of private individuals to instigate a private prosecution is somewhat a constitutional right. Lord Wilberforce in Gouriet v Union of Post Office Workers (1978) 3 All ER 70  articulated the importance of private prosecutions as a remedy in the following way:
This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences… remains a valuable constitutional safeguard against inertia or partiality on the part of authority.
How is a private prosecution commenced?
An individual may commence a private prosecution by laying an information before a magistrates’ court. If the information appears prima facie correct, the magistrate will then issue a summons, requiring the person accused to appear before the court to answer the allegation in the information.
When may the CPS take over a private prosecution?
The CPS may find out that a private prosecution has commenced under a variety of circumstances. The most obvious situation is where the private prosecutor asks the CPS to take over the prosecution. Equally, the defendant could ask that the CPS take over. When a request to take over a private prosecution has been made to the CPS, the private prosecutor should give the CPS the papers upon which they intend to rely for the purposes of their prosecution. The defendant should also be given the opportunity to provide any information which may be relevant to the case, such as information about his defence. The defendant is not, however, obliged to provide the CPS with any documentation.
Upon the papers, the CPS must then make the decision of whether or not the prosecution should be continued. The decision involves asking three separate questions, all of which must be answered in the affirmative in order for the CPS to take over and continue with the prosecution. Those three questions are as follows:
- Is the evidential sufficiency stage of the CPS Full Code test met? (This means there must be sufficient admissible and reliable evidence to provide a realistic prospect of conviction) .
- Is the public interest stage of the CPS Full Code test met? (The prosecution must be in the public interest).
- Is there a particular need for the CPS to take over the prosecution? (For example, if the offence alleged is particularly serious, or requires the disclosure of sensitive material, this may be indicate that the CPS take over the prosecution).
If it is decided that the CPS should take over a private prosecution, the private prosecutor and the defendant should be informed of this decision, accompanied by the reasons for it.
Can the CPS stop a private prosecution?
…it may be more feasible and indeed more appropriate for an individual to bring a civil claim…
Civil or criminal recourse?
Sometimes, it may be more feasible and indeed more appropriate for an individual to bring a civil claim for compensation, rather than commencing criminal proceedings in the form of a private prosecution. Civil actions have the advantage of having a lower standard of proof than criminal proceedings. If an individual decides to commence a private prosecution, he will have to show beyond a reasonable doubt that the defendant committed the act alleged. In the civil court, however, the individual will only have to show to a judge that it was more likely than not that the defendant did the act in question. Similarly, a wider range of evidence is admissible in the civil courts than in the criminal courts. Civil litigation has the disadvantage of being potentially very costly and time consuming.