Research and analysis

Private Prosecutions

Published 22 February 2022

Any adult has the right to apply to a magistrates’ court to bring a private prosecution. However, there are a small number of offences where the prosecutor is restricted, or that can only be prosecuted if the Attorney General consents. The Act of Parliament which creates the offence will state whether this is the case.

The Crown Prosecution Service can take over any criminal prosecution, and may then carry out the prosecution. It may end (or ‘discontinue’) the prosecution if it does not believe that it should have been brought.

All prosecutions begin in a magistrates’ court, but may then be heard in the Crown Court. For some offences, such as theft, fraud, or assault occasioning actual bodily harm, the defendant can insist on a trial before a jury in the Crown Court. A prosecutor cannot insist on this, although they may give the court reasons why they should send the case to the Crown Court. Some offences, such as assault with intent to cause grievous bodily harm, and rape, can only be tried in the Crown Court. Others, such as common assault or harassment without violence, can only be tried in a magistrates’ court.

1. Bringing a private prosecution is difficult

It’s important to note that bringing a private prosecution is a serious and difficult step. Those thinking of bringing a private prosecution are strongly advised to seek independent legal advice from a qualified lawyer first. The Law Society publishes details of qualified solicitors.

The person prosecuting will need to pay a lawyer if they want legal representation. According the Ministry of Justice’s Legal aid statistics (table 10 in the January to March 2020 publication), the average costs of a private prosecution are around £8,500.

Court staff and judiciary cannot give legal advice to a prosecutor. The prosecutor must comply with all the relevant legislation, common law and rules, including the rules on disclosure and the law of evidence. The court can order the Ministry of Justice to pay the prosecutor’s costs at the end of the case, but that is not guaranteed. In some rare cases, the court may order the prosecutor to pay the defendant’s costs.

2. How private prosecutions work

Private prosecutors must comply with the Criminal Procedure Rules 2020, in particular Part 7 which sets out the relevant rules for bringing a prosecution.

They must complete the official application for summons or warrant form and send it to a court office.

A judge, magistrate, or justices’ legal adviser at the court will make a decision based on the information in the application form, not in a hearing. This means that the form must be completed in full and must disclose all relevant information.

If all relevant information is not disclosed, or if inaccurate information is disclosed, the application could be refused or the case could be dismissed later on.

3. What happens next

3.1 Granted applications

If the court decides a private prosecution can be brought:

• it will issue a summons to notify the defendant of the proceedings, telling them when and where the case will be heard, the charge and the name of the prosecutor.
• it may arrange the hearing in a court different from the one the prosecutor has chosen, considering factors such as the location of the alleged offence, where the defendant lives, and the availability of courtrooms
• it will prepare the summons and send it to the private prosecutor, who must send or deliver the summons to the defendant (in one of the ways set out in Rule 4 of the Criminal Procedure Rules), then prepare a certificate confirming when and how they sent or delivered it
• the prosecutor must then attend court on the date in the summons to present their case
• evidence will not be heard on the first hearing date, but if the defendant appears and pleads not guilty, the magistrates’ court will either postpone (‘adjourn’) the case for trial, or send it to the Crown Court

3.2 Refused applications

If the court refuses the application for a private prosecution:

• it will write to the prosecutor, setting out the reason
• the prosecutor cannot submit their application to another court

The prosecutor may apply to the High Court for a judicial review, but only if they can argue that the magistrates’ court made a mistake of law.

To apply for a judicial review, the prosecutor must complete an N461 application form, setting out the legal error and send it to the High Court to be considered by a High Court judge. The judge will either grant permission for a judicial review, or refuse it. This is a hard test to pass and legal advice is advised.

If permission is granted there will be a full hearing in the High Court. The High Court may invite the proposed defendant to appear.