Articles Private Prosecution 15th Dec 2021

“He’s checking his list; he’s checking it twice.…”

A festive reminder to dot your i’s and cross your t’s when starting a private prosecution.

Just in time for Christmas, and so you can prosecute Santa/Jeff Bezos for a disappointing haul, the Justices’ Clerks’ Society (JCS) has issued new guidance on the perils and pitfalls of starting a private prosecution.  For many, this will be familiar territory but even for seasoned professionals, there are nuggets to be unearthed.  Some of the more interesting points are considered below.

Resolving the application for a summons/warrant

In the vast majority of cases, the application (or ‘information’ in old money) will be considered by legal advisors, who are now empowered under the Criminal Procedure Rules to consider applications for warrants as well as for summonses.  In legally complex cases, however, legal advisors still have an obligation to refer matters up to a District Judge, and a handful of cases (for example those involving terrorism or allegations against MPs), must be dealt with by the Chief Magistrate in person.  In making your application, therefore, consider whether the case is one which requires judicial input and frame it accordingly.

As for consideration of the application itself, the basic rule is that provided: (1) the allegation is an offence known to law; (2) the essential ingredients of it are present; (3) it is not out of time; (4) the court has jurisdiction; and, (5) the applicant has the necessary authority to prosecute, the summons should ordinarily be issued.  It forms no part of the court’s task at this stage to consider the likelihood of the prosecution succeeding.

That is subject, however, to the following caveats:

  1. In considering whether the essential ingredients are present, the court must make some assessment of the weight of the evidence and refuse to issue where a prosecution is hopeless.
  2. In order to establish whether the application is vexatious, or whether the applicant has complied with the duty of candour, the Court may make enquiries through HMCTS’s internal systems or even through the internet.

Given the vagaries of the internet, and the reliability of the information produced by it, this latter suggestion is somewhat startling, especially as the application will ordinarily be resolved on the papers without input from either of the parties.

Representations from the proposed defendant

The guidance stresses that representations from the defendant on the issuing of the summons should be the exception rather than the rule.  If the defendant believes in due course that the summons is flawed, or the case is without merit, he/she can address that by seeking a stay, asking the CPS to take it over and discontinue or by pleading not guilty.

In some cases, however, it may be appropriate to seek representations from the defendant.  In this event, this should in the first instance be achieved in writing.  Only if deemed necessary thereafter will an oral hearing be required.  This hearing can be before a legal advisor or a District Judge, and will ordinarily be held in private unless the defendant agrees to a public hearing, or there is otherwise a good reason to depart from that norm (CPR Rule 7.2(12)).

Abuse of process

The guidance deals with the usual issues in terms of mixed motives for bringing a prosecution (not in itself an abuse) and also whether the collateral purpose in applying for a summons (e.g. putting pressure on a party in civil proceedings) has become dominant, in which case it would be an abuse.

One area which receives particular attention in the guidance, however, is that of previous undertakings not to prosecute.  It is important for any prospective private prosecutor to take into account action which the police have previously taken.  If, for example, the police have previously issued a caution and told the defendant that, as a result, he would not be prosecuted, this acts as a bar on any private prosecution as well (Jones v Whalley [2006] 4 All ER 113).  Of itself, however, and absent any such undertaking, a caution will not prevent a later private prosecution taking place.

Also considered is the effect of previous settlements of civil proceedings.  These are capable of acting as a bar on any future private prosecution, if that course of action has been expressly excluded by the settlement agreement.  In cases of ambiguity, the matter should be resolved on an inter partes basis (R (Siddiqui) v Westminster Magistrates’ Court [2021] EWHC 1648 (Admin)).

The guidance also contains a helpful section on the proposed prosecution of judges, MPs, ministers etc.  Applications for summonses in the case of MPs and ministers should be referred to the Chief Magistrate’s Office and ordinarily refused in the absence of any suggestion of bad faith.  Those involving judges can usually be summarily refused, on the basis of protection from suit for decisions made in court.

Finally, as far as abuse of process is concerned, the guidance deals with prosecutions based on faith, citing the example of a summons issued against the head of the Mormon church for fraud, on the basis that fundamental tenets of the faith were untrue. In staying the case, it was determined that such issues are not justiciable in an earthly court (which bodes ill for any prosecution of Santa).

Anyway, there we have it.  Aside from the issues covered above, the guidance deals with other procedural issues and contains also a handy checklist of matters to consider when starting a prosecution.  If you don’t receive a copy of it in your stocking, I suggest looking it up in the New Year.

Have a wonderful Christmas.


Christopher Coltart QC


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