Civil and criminal proceedings: private prosecutions as a litigation tool?

Key points

• Anyone has the right to bring a prosecution against another party for criminal wrongdoing.
• An accused person may prevent abusive proceedings beginning by making representations to the court or, once proceedings have commenced, by requesting the Crown Prosecution Service (CPS) to take over the case and discontinue it.
• While the threat of criminal proceedings is a powerful one, care is needed to ensure it is not used to put improper pressure on prospective defendants.

The right of every individual or entity to bring a private prosecution is not a new one: the legislation which established the Crown Prosecution Service in 1985 specifically retained that right. However, such actions were traditionally the preserve of specific groups, such as the RSPCA or the Federation Against Copyright Theft (FACT).

More recently there has been a rise in the use of private prosecution actions by private individuals and commercial entities, including as an alternative to or in conjunction with civil proceedings. What may motivate a party to bring a prosecution in these circumstances and how can such an action be challenged by a defendant?

Why bring a private prosecution?

A private prosecution is a prosecution for a criminal offence started by an individual or entity rather than a public prosecution authority. Such actions may be brought where:

• the public prosecution authorities are unwilling or unable to act
• damages will not adequately compensate for the harm suffered
• the injured party wishes to establish a precedent for future conduct and/or send a message of deterrence, or
• the private prosecutor has access to a relevant specialist expertise that the public prosecution authorities do not. For further examples of private prosecution cases, see our article.

Increasingly, parties are choosing to bring a private prosecution instead of, or in conjunction with, civil proceedings. A claimant may consider that a private prosecution offers certain advantages over civil action, including the possibility of a faster resolution at lower cost, a more effective means of targeting individuals, and the availability of tougher penalties including unlimited fines and imprisonment.

A private prosecution brought in conjunction with civil proceedings may be additionally motivated by a desire to:

• secure a criminal conviction or adverse factual finding on which related civil proceedings can rely
• obtain earlier disclosure of relevant documents
• pressure an opponent to settle on-going civil litigation on less advantageous terms, or
• cause reputational damage.

Notwithstanding the advantages that a private prosecution may be thought to offer, in the 2014 case of R (Virgin Media Ltd) v Zinga the Lord Chief Justice indicated that, in some cases, it may not be a suitable alternative to civil action. In a later decision in the same case, in order to deter the bringing of improper or unsuitable private prosecutions, the court took steps to limit the costs recoverable by the private prosecutor from state funds. In addition, the court highlighted the professional duties of the legal advisors bringing such actions, including the overriding duty to “ensure that the proceeding is fair and in the overall public interest”. Where victim compensation orders are sought by a private prosecutor, the Crown Prosecution Service should intervene, to protect against conflicts of interest.

Defending or challenging a private prosecution

All private prosecutions are commenced by the “laying of an information”, which is a statement describing the allegation and the accused. Once the information has been laid, a magistrate will consider it and decide whether to issue a summons requiring the accused to appear to answer the information, or if necessary a warrant directing the police to arrest that person and bring him before the magistrates’ court. If the court has concerns over the request to issue a summons, it may make enquiries of the prosecutor as to the basis of the request.

The private prosecutor is under no duty to inform the defendant that an application is to be made, but if the defendant is aware of the hearing, he may seek to make representations at the Magistrates’ Court as to why the case should not proceed. The magistrate will generally allow a case to proceed unless there are compelling reasons not to do so, such as misconduct or abuse in the way that the action has been brought.

That the prosecutor is motivated by self-interest or a desire to punish the defendant is not in itself abusive. A defendant is more likely to be successful in securing the dismissal of a case if it can demonstrate that it is being used as leverage in the context of related proceedings and/or settlement discussions, that allegations made very closely overlap with allegations that are the subject of on-going civil or criminal proceedings (whether in the UK or elsewhere), or that the action is being used as a means of intimidating the defendant and has been threatened repeatedly before being brought. Magistrates are becoming increasingly aware of the use of private prosecution actions as a means of exerting pressure on defendants in related civil proceedings, and may be more willing to exercise their discretion in the defendant’s favour in such circumstances.

Where a defendant does not become aware of the proceedings until after a summons or warrant is issued, it may ask the CPS (acting on behalf of the Director of Public Prosecutions) to exercise its power to take over the prosecution and discontinue it. The CPS is not required to take over the action but it must, if asked, decide whether or not to exercise the power to do so. Applying the CPS current policy, a private prosecution that fails to satisfy one or both limbs of the “Full Code Test” should be taken over and discontinued. The test is that there is enough evidence to provide a “realistic prospect of conviction” of the defendant and it is in the public interest to bring the case to court.

Accordingly, where a defendant can demonstrate that the evidence relied on in bringing the proceedings is insufficient or inaccurate, or that no public interest is being served by it, the prosecution may be stopped. The CPS may also discontinue a private prosecution that is vexatious, malicious or an abuse of process (including for the reasons identified above), is not being brought in a fair and proportionate manner, would interfere with the investigation of another criminal offence and/or where the prosecutor has failed to comply with its obligations.

A tactical weapon?

Despite indications from the courts that they wish to discourage a proliferation of private prosecutions, there appears to be a steady rise in the number being brought. As the range of business-related criminal offences increases, there will be the possibility of a prosecution in more commercial disputes and some will view the right to private prosecution as a newly discovered weapon in the commercial litigation armoury. However, although a high bar to reach, care is needed that threats of criminal proceedings do not stray into the realm of blackmail, on which see our accompanying article on Civil and criminal proceedings: settlement discussions.

A defendant on the receiving end of an improper or unsuitable private prosecution should be able to secure its dismissal using one of the routes considered above. However, the fact that the prosecution may ultimately be dismissed would not necessarily prevent a party from achieving some tactical advantage by launching the criminal action (and publicising the fact), or even by threatening the defendant with the possibility that it may do so.