This article was previously published in The Times on 23 October 2014.
Such cases have increased as state prosecuting agencies and police are increasingly cash-strapped and under-resourced.
Once again the right to bring private prosecutions in criminal courts has featured in headlines, the latest case involving a student at Southampton University who filmed a man swearing at him using a camera hidden in his sunglasses.
Using this evidence, the student sought to prosecute the man for harassment under the Public Order Act 1986. Neither the police nor the Crown Prosecution Service was involved. The defendant pleaded guilty and spent a day in prison.
The right to bring a private prosecution is contained in section six of the Prosecution of Offences Act 1985 (POA), which, with certain caveats, allows an individual or entity to pursue an action in the criminal courts if they are a victim of a criminal offence. The right is longstanding and the House of Lords has confirmed its existence as a safeguard against a failure by state prosecuting bodies to bring proceedings.
One of the most high-profile private prosecutions was that by Stephen Lawrence’s family, which did not result in convictions. At the time, the case was seen as exceptional. Private prosecutions have since increased due to the present economic climate as state prosecuting agencies and police are increasingly cash-strapped and under-resourced.
But private prosecutions are not the preserve of individuals and families. Businesses can take advantage of them too, for example if they feel the authorities are not doing enough to protect their interests. In 2011, Virgin Media successfully brought its own private prosecution against fraudsters flooding the market with set-top boxes allowing people unlawful, free access to its channels. Similarly, Murli Mirchandani prosecuted a former business associate who, on being convicted at the Old Bailey earlier this year for fraud of $19.5 million, received an eight year custodial sentence.
Private prosecutions are, however, not the great panacea. Caution should be advised before embarking on a private prosecution. First, there will be no police involvement. While hiring private investigators may help to bridge this gap, they will not be in a position to arrest suspects, apply for search warrants or have access to a defendant’s criminal history. If the prosecutor is also the complainant they might lack the requisite objectivity and impartiality. The complainant must also fund the prosecution which could be very expensive.
Section 6(2) POA provides that the CPS has the right to take over and continue any private prosecution, if it becomes aware of the case. One advantage of this is that the victim is no longer obliged to fund it. The victim, however, is then no longer in control and must take a back seat, hoping that the right enquiries are made to bring the matter to a successful conclusion. Contrary to the complainant’s initial intentions, the CPS may also seek to discontinue the matter if it decides the evidence would not provide a realistic prospect of conviction or if the case is not in the public interest.
The lord chief justice summed up the current phenomenon for private prosecutions as “At a time when the retrenchment of the state is evident in many areas, including the funding of the Crown Prosecution Service and the Serious Fraud Office, it seems inevitable that the number of private prosecutions will increase.”
As lawyers like to say, we respectfully agree.
For further information, please contact Sophia Purkis, Partner, Fladgate LLP (firstname.lastname@example.org)