Private prosecutions: safeguards Contents

2The state of private prosecutions

16.Private prosecutions play an important role in the justice system in England and Wales. Any organisation or individual in England and Wales may seek to bring a prosecution.27

Distinguishing private and public prosecutions

17.The CPS defines a private prosecution as “a prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other prosecuting authority”.28

18.There is no clear statutory or common law definition of what constitutes a ‘private’ or ‘public’ prosecution.29 Kingsley Napley LLP, a law firm which conducts private prosecutions, argue that the term “private prosecution is a misnomer as prosecutions in the Crown Court are brought on behalf of the Crown”.30 Once a prosecution reaches court, it is treated exactly the same whether brought by a public body or by a private organisation.31 The legal situation is especially complex in the case of public bodies that bring prosecutions not directly related to their own statutory or public functions.32

19.The right of an individual to bring a private prosecution has often been defended as an important and historic constitutional right to safeguard “against the inaction of authorities”.33 In reality an individual is poorly placed to bring a successful prosecution: the cost is prohibitive and legal aid is not available. The right is largely used by organisations that have the means to employ the necessary investigative and legal expertise.

20.The majority of prosecutions in England and Wales are brought by the CPS.34 In 1981, the Royal Commission on Criminal Procedure, chaired by Sir Cyril Philips, recommended the creation of a prosecution agency which would enable the division of functions between the police and prosecutor.35 This recommendation was implemented by the Prosecution of Offences Act 1985, which established the CPS. The then Home Secretary, Leon Brittan, explained that the creation of the CPS “reflects the principle that those responsible for the investigation of the offence should not also be responsible for the conduct of the prosecution”.36 By contrast the Serious Fraud Office (SFO) is responsible for the detection, investigation and prosecution of serious fraud cases. In the case of the SFO “the complexity of the work involved” was cited as justification for the creation of a unified service where prosecutors and investigators work together from the start of a case.37 The CPS and the SFO are both public bodies, created by statute, superintended by the Attorney General, subject to inspection, subject to judicial review and directly accountable to Parliament, and therefore indirectly to the public, for their performance. That accountability secures a degree of transparency in both the publication of their policies and information on their performance which can be scrutinised by parliamentarians, the media, civil society and the public.

21.Despite their distinct organisational structures, the CPS and SFO are both institutionally independent of the victim of the alleged offence. Crown prosecutors can pursue a prosecution only if it is in the public interest. The CPS outlines the importance of its institutional independence as follows:

CPS prosecutors are independent from the police and other investigators; they carry out their professional duties without political interference and are unaffected by improper or undue pressure or influence from any source. Private prosecutors are not so required.38

22.CPS prosecutors are guided by the Code for Crown Prosecutors, issued under section 10 of the Prosecution of Offences Act 1985. Public prosecutors are guided by the Code, which sets out principles that must inform prosecutorial decision making. These principles, including the independence of the prosecutor, aim to ensure that prosecutorial decisions are informed by a range of factors, such as “the circumstances of the harm and the impact on the community”.39

23.Private prosecutions are often instigated or carried out by the victim of the alleged offence or by a body that has a direct interest in pursuing the case. Legal academics Claire de Than and Jessie Elvin argue that private prosecutors “often have an inbuilt conflict of interest”.40 That conflict is not necessarily problematic. A number of submissions to the Committee highlight the value of “victim-led” private prosecutions. Ari Alibhai, Counsel retained by the Premier League, SKY and FACT, points out that these organisations have been responsible for bringing a number of “complex and serious allegations of copyright infringement/intellectual property fraud before criminal courts”.41 Alibhai argues that victim-led private prosecutions are particularly important for intellectual property crime, because the private sector is able to supply the necessary specialist expertise and resources that the CPS and the police cannot. Other organisations that bring significant numbers of private prosecutions also claim to have specialist expertise in the offences that they prosecute. The example of the RSPCA is set out in Box 1 below.

Box 1: the RSPCA

The RSPCA brings a significant number of prosecutions every year. In 2019, the RSPCA’s private prosecutions resulted in 1,432 convictions being secured in the magistrates’ and Crown courts.42 The RSPCA justifies its prosecutorial activity on the basis that it fills a gap in the provision of public service, meets its charitable objectives and is an experienced prosecutor (it has been prosecuting since 1824).43 The RSPCA is an unusual private prosecutor in that it is responsible for 85% of the enforcement of the Animal Welfare Act 2006. Although is not a victim of the offences it prosecutes, the RSPCA arguably has a direct interest in the enforcement of the animal welfare offences that it prosecutes.

Criticisms of the RSPCA’s approach to prosecutions prompted the charity to commission an independent review of the manner in which it discharges its prosecution role. The outcome of that review, which was conducted by Stephen Wooler CB, was published in September 2014.44 The Wooler report set out 33 recommendations many of which can serve as guidance for all private organisations that conduct prosecutions. In response to the report, the RSPCA committed to implementing a number of structural and cultural changes to its approach to prosecutions in 18 months.45 It committed to becoming more transparent and accountable. The RSPCA now publishes a number of documents detailing its prosecutorial activities and outlining how they are overseen, including an annual prosecutions report and the reports of the RSPCA Prosecution Oversight Panel (which was established to implement a recommendation in the Wooler Report).

In 2016 the Environment, Food and Rural Affairs Committee criticised the RSPCA for failing to fully implement the recommendations of the Wooler review.46 The Committee concluded that the RSPCA’s combination of activities, namely its investigative, campaigning and fundraising functions, gave rise to “a conflict of interest”. As a result, the Committee recommended that the RSPCA “withdraw from acting as a prosecutor of first resort where there are statutory bodies with a duty to carry out this role”.47

The RSPCA has submitted evidence to this inquiry, which outlines how it approaches prosecutions and the measures it has put in place to improve its transparency and accountability.48 The Committee has also received a number of submissions that are critical of the RSPCA’s prosecutorial activities.49 The Countryside Alliance suggest that it is inappropriate for the RSPCA to remain the principal prosecutor of animal welfare offences and that it should instead be the responsibility of public bodies.50 John Goodwin, a solicitor for Cohen Cramer Solicitors who defends prosecutions brought by the RSPCA, highlights concerns over the way in which the RSPCA operates at the pre-trial stage, the issues surrounding the obtaining and execution of warrants, the approaches to the public interest, and to disclosure.51

The increasing number of private prosecutions in England and Wales

24.In 2014, the then Lord Chief Justice, Lord Thomas of Cwmgiedd, noted in R (Virgin Media) v Zinga that “there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions”.52

25.The evidence of the Private Prosecutor’s Association (PPA), which was established in 2017, also highlights an increase in the number of private prosecutions:

The PPA was established at a time when the number of private prosecutions had been growing rapidly. It is our view (and that of others in the criminal justice system) that, in part, this growth reflects an inability of state bodies, as currently resourced, to meet demand. Many crimes which could be prosecuted are not. This, in many cases, leaves victims looking for alternative remedies, of which private prosecutions are one.53

26.TM Eye’s evidence to the Committee states that since 2014 it has brought over 500 criminal prosecutions as a private prosecutor with a 100% conviction rate and that 13% of those convicted receive custodial sentences.54 TM Eye explains that its prosecutorial practice began “as a direct result of the Government austerity measures and reduction in law enforcement capabilities” and that it has diversified in recent years to include general offences.55 Edmonds Marshall McMahon claim that “access to justice via the police for certain crimes is now the (rare) exception rather than the rule, particularly in relation to fraud”.56

27.The PPA highlight evidence of the ‘justice gap’ in “the number of reports of financial crime to Action Fraud and the number of such cases taken forward by the police for investigation and thereafter prosecuted by the Crown Prosecution Service”.57 The PPA state that in its experience, the number of prosecutions brought by the Post Office is higher than for the typical private prosecutor.58 The PPA cite the Security Industry Authority which is reported to have been responsible for 30 prosecutions in the 12 months to May 2020.59 The PPA’s evidence stresses that in its experience large private organisations that regularly bring private prosecutions have shown to have an “organisational culture of respect for the criminal justice system and of a heightened desire not to do anything which would bring the process into disrepute”.60

28.It is a strength of the current system that it enables corporate victims of crime to pursue justice when public authorities decline to intervene. The lack of a prosecution can represent injustice just as much as a prosecution wrongly brought. However, in a modern criminal justice system whether an offence is prosecuted or not should not depend on whether the victim has the financial resources to conduct a prosecution.61

The cost of private prosecutions

29.The cost of private prosecutions is controversial. Some private prosecutors claim that given the gap left by the limited resources of public bodies, private prosecutions provide the public benefit of “allowing law enforcement and state prosecution bodies to focus on other areas of crime, freeing up vital and stretched resources to focus on other priority crimes”.62 Other submissions to the Committee suggest that a favourable costs regime is driving organisations to use private prosecutions instead of the civil courts, which is in turn resulting in unnecessary expense to the taxpayer.

30.Lord Thomas, the then Lord Chief Justice, highlighted in the 2014 case of Zinga that in practice private prosecutions are likely to cost the state more than an equivalent CPS prosecution:

The costs of a private prosecution, whether successful or unsuccessful, are recoverable from the taxpayer; the use of private prosecutors will almost inevitably cost the State much more than the use of a State prosecutor, such as the CPS.63

A private prosecutor can recover costs at rates that are not confined by prescribed amounts, which means that “private prosecutions are publicly funded at a higher cost than if the prosecution had been conducted by the CPS.64 The CPS claim that its prosecutions provide the “most cost-effective use of the public purse, and therefore the growth in private prosecutions should be discouraged”.65

31.Jamas Hodivala QC, a barrister at Matrix Chambers, points out that there is inequality between the position of a prosecutor, who can recover costs if a prosecution is successful or unsuccessful (as provided for by section 17(1) of the Prosecution of Offences Act 1985), and the position of a defendant, which save for two limited exceptions is unable to recover any of its legal costs if it is acquitted of criminal charges.66 Hodivala reports that, from personal discussions he has had with private prosecutors, “the low costs risk is viewed as an economic incentive to bring a private prosecution”.67 The CPS’s submission also suggests that the “lack of financial consequences” for an unsuccessful private prosecutor may increase the likelihood that the system will be misused.68

32.Aliant Law’s evidence to the Committee stresses that a company that chooses to bring a private prosecution instead of a civil claim “avoids having to make payment of any court fees”.69 More broadly, Aliant law submit that the low risk costs regime gives rise to an financial incentive that “can act as a real distortion on the motives and actions of a private prosecutor”.70

33.The Criminal Law Reform Now Network’s evidence draws attention to the fact that convicted defendants in private prosecutions are sometimes asked to pay more than if they were prosecuted by the CPS:

Whereas the CPS only asks for a relatively modest fixed sum in all cases, there is nothing to stop private prosecutors, who will engage their own legal teams and possibly more expensive counsel than would the CPS, from seeking considerably more from convicted defendants, and we gather that this is quite common.71

We agree with the CLRNN that this situation creates a risk that the higher costs could “be as coercive towards defendants who anticipate being convicted (whether guilty or not) as the threat of higher sentences if a trial is contested”.72

34.The Ministry of Justice’s legal aid statistics provides some insight into the number of private prosecutions and their costs. Of course, the number of costs orders granted from private prosecutions does not provide a complete picture of the number or the cost of private prosecutions in the courts. Nevertheless, the figures outlined below do appear to support the proposition that the number of private prosecution is increasing. In 2014/15 there were 32 costs orders awarded to private prosecutions (30 in the magistrates’ court and 2 in the Crown Court) which resulted in payments of £248,000 and £112,000 respectively from central funds.73 In 2019/20, there were 276 cost order awarded to private prosecutions (219 in the magistrates’ court and 57 in the Crown Court) which resulted in payments of £1,169,000 and £11,118,000 respectively. Each private prosecution in the magistrate court cost an average of £5,338 and each private prosecution in the Crown Court cost an average of £195,053.


35.The latest figures show that many private prosecutions cost the taxpayer more than CPS prosecutions. That may in part be explained by the complexity of the cases undertaken privately. Nevertheless, the public is unlikely to accept that the state can afford to pay for the prosecution of financial crimes against large organisations but is not prepared to ensure that the police and the CPS have enough resources to prosecute similar offences committed against ordinary citizens.

36.A rise in the number of private prosecutions risks the “prospect of a two-tier justice system”.74 The gap in the enforcement of fraud means that at present, wealthy organisations can seek justice via a private prosecution, but elderly and vulnerable victims of fraud cannot. Private prosecutions should be available to all. Otherwise, the legal right to bring private prosecutions will serve to exacerbate existing inequalities rather than to act as a safeguard against state inaction and a viable alternative for seeking access to justice.

37.The Committee agrees with the CPS that the Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds. We acknowledge the proposal made by the Centre for Women’s Justice that private prosecutors’ recoverable costs should be capped at legal aid rates.75 We think there should be no disparity between the claims that can be made from central funds by prosecutors and defendants. We also support the proposal made by the CLRNN that defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS.76

38.At a time when the resources of the criminal justice system are under intense pressure, it is difficult to justify private prosecutors being able to access public funds at a higher rate than criminal legal aid practitioners. The CPS’s specialist fraud division will only be able to secure justice for victims of fraud if the police are given the resources to investigate what is now the most common form of offence.77

39.In 2017, the Court of Appeal warned that it would be “inimical to justice” to allow a parallel prosecution service to the CPS to develop in particular areas.78 One of the advantages of the CPS is that is able to adopt a consistent approach to prosecutorial decisions and for those decisions to be informed by public policy. While it might be arguable that private prosecutions are no more likely to fall into error than public prosecutions, increasing numbers of private prosecutions will only make the prosecution landscape more complex and fragmented.

27 Section 6(1) of the Prosecution of Offences Act (POA) 1985

28 CPS, Private prosecutions legal guidance (last accessed 22 September 2020)

29 Criminal Law Reform Now Network (PPS0022) para 7

30 Kingsley Napley LLP (PPS0011) para 3

31 Criminal Law Reform Now Network (PPS0022) para 33

32 The Supreme Court set out in R v Rollins [2010] UKSC 39 that a body which is given a statutory responsibility to prosecute for specified offences can still prosecute for other offences. However, the Court of Appeal in R v AB [2017] EWCA Crim 534 pointed out that local authorities “are entirely a statutory creation” and cannot bring private prosecutions in reliance on the common law right, and therefore their prosecutorial authority is limited to those areas that they are granted responsibility by statute.

33 HMSO, Report of the Royal Commission on Criminal Procedure (Cmnd 8092-I and II, 1981) para 7.47; There have been a number of high-profile examples or private prosecutions brought by private individuals: in September 1994, Stephen Lawrence’s parents, Doreen and Neville Lawrence launched a private prosecution against Gary Dobson, Luke Knight and Neil Acourt; and in 2019 Marcus Ball brought a private prosecution against Boris Johnson. However, it is relatively rare for such prosecutions to result in a conviction.

35 HMSO, Report of the Royal Commission on Criminal Procedure (Cmnd 8092-I and II, 1981) para 7.5

36 HC Hansard 16 April 1985 Vol 77 Col 150

37 HMSO, Fraud Trials Committee Report (1986) para 2.46

38 Crown Prosecution Service (PPS0044) para 15

39 Crown Prosecution Service (PPS0044) para 13

40 Claire de Than and Jesse Elvin, Private prosecution: a useful constitutional safeguard or potentially dangerous historical anomaly? Criminal Law Review. 2019, 8, 656–683

41 The Football Association Premier League Limited, Sky UK Limited, FACT (PPS0016) para 2

42 RSPCA Prosecutions Annual Report 2019 page 2 (last accessed 22 September 2020)

43 RSPCA (PPS0010)

46 House of Commons Environment, Food and Rural Affairs Committee Animal welfare in England: domestic pets (November 2016 HC 117) para 164

47 House of Commons Environment, Food and Rural Affairs Committee Animal welfare in England: domestic pets (November 2016 HC 117) paras 163 -165

48 RSPCA (PPS0010)

49 Ms Pat Wallwork (PPS0058) Goodwin (PPS0060) Countryside Alliance (PPS0056)

50 Countryside Alliance (PPS0056)

51 Goodwin (PPS0060)

52 [2014] EWCA Crim 52

53 Private Prosecutors’ Association (PPS0021) para 3.1

54 TM EYE Ltd (PPS0028)

55 TM EYE Ltd (PPS0028)

56 Edmonds Marshall McMahon (PPS0009) para 4 c)

57 Private Prosecutors’ Association (PPS0021) para 3.2

58 Private Prosecutors’ Association (PPS0021) para 5.3

59 Private Prosecutors’ Association (PPS0021) para 5.3

60 Private Prosecutors’ Association (PPS0021) para 5.6

61 Finlay Stark, The demise of the private prosecution? Cambridge Law Journal 2013 72(1) 7–11

62 AnotherDay (PPS0005) para 5

63 R. (Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823

64 Crown Prosecution Service (PPS0044) para 34

65 Crown Prosecution Service (PPS0044) page 11

66 Mr Jamas Hodivala QC (PPS0002) para 14

67 Mr Jamas Hodivala QC (PPS0002) para 18

68 Crown Prosecution Service (PPS0044) para 25

69 Aliant Law (PPS0037)

70 Aliant Law (PPS0037)

71 Criminal Law Reform Now Network (PPS0022) para 55

72 Criminal Law Reform Now Network (PPS0022) para 55

73 Ministry of Justice, Legal aid statistics Jan-Mar 2020, table 10. Note: these are the earliest and only statistics available.

74 Crown Prosecution Service (PPS0044) para 33

75 Centre for Women’s Justice (PPS0019) para 23 i)

76 Criminal Law Reform Now Network (PPS0022) para 57

77 Crown Prosecution Service (PPS0044) para 36

78 R v AB [2017] EWCA Crim 534 para [98]

Published: 2 October 2020