Private Prosecutions and the Public Interest
Those contemplating bringing a private prosecution may (and those instructed to conduct such proceedings will) be aware that the Director of Public Prosecutions (‘DPP’) has the power to take over the case and discontinue it at any stage by virtue of section 6 of the Prosecution Offences Act 1985.
However, accurately predicting (and advising upon) whether the DPP will or might exercise his discretion to intervene and discontinue in a particular case can be difficult. Whilst the application of the evidential test in these circumstances engages clear and familiar principles, which means that the likely outcome may be anticipated with a degree of confidence, forecasting whether a private prosecution is or may be vulnerable to discontinuance on public interest grounds can be particularly problematic. Successfully challenging adverse decisions taken on this ground is especially tricky. These issues are considered briefly below.
The test for discontinuance
What is the DPP’s stated policy? Guidance issued to CPS lawyers in 2009 makes it clear that the familiar two-limb test found in the Code for Crown Prosecutors (‘the Code’) should be applied:
‘a private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met’.
In the landmark case of Gujra, the Supreme Court held (albeit only by a 3-2 majority) that it was lawful for the DPP to apply the Code evidential test to private prosecutions and, therefore, to discontinue proceedings where the evidence is considered insufficient to make a conviction more likely than not (the ‘reasonable prospect’ or ‘better than evens’ test). Prior to 2009, the DPP would only halt private prosecutions on evidential grounds if no sufficient case was disclosed for the defendant to be called upon to answer, but the court in Gujra endorsed the revised policy (described as a ‘volte-face’) and in so doing in this respect at least aligned private prosecutions with those brought by the state. Thus, although there is room to debate the merits of this decision (see, for example, the cogent dissenting judgment of Lady Hale), the position is now settled.
It should be presumed that the application of the Code public interest test to private prosecutions by the DPP would be deemed similarly lawful, although the limited discussion of the point in Gujra was obiter. Given this, it is likely to be disconcerting for prospective private prosecutors to contemplate that a case is at risk of being taken over and discontinued on public interest grounds despite having (perhaps comfortably) reached the required evidential standard.
Where does the public interest lie?
The challenge for a prospective private prosecutor and those advising them lies in predicting how the public interest test will be construed by the CPS lawyer to whom the DPP will delegate his authority. The higher courts have repeatedly referred to the ‘polycentric character’ of decision making in this area, a phrase that captures but does nothing to elucidate the somewhat ethereal and nebulous nature of the exercise.
The promulgated written guidance provides little clarity. The test is set out in the Code and refers to seven questions that should be considered to, ‘identify and determine the relevant public interest factors tending for and against prosecution’. But as a practical guide to understanding and applying the public interest test, the questions are disappointingly unenlightening. Several are of no or limited application to cases without the classic ‘victim’ and ‘harm’ paradigm.
There also appears to be something of a definitional tension at the heart of this part of the Code. Whilst it is acknowledged (surely correctly) that, ‘a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour’, a preceding paragraph seems to set a higher threshold. It is stated that where the evidential threshold is met, ‘prosecutors must go on to consider whether a prosecution is required in the public interest’(emphases added).
The waters are further muddied by the breadth of the discretion afforded to the decision maker, as reflected in the following passage:
‘The questions identified are not exhaustive, and not all the questions may be relevant in every case. The weight to be attached to each of the questions, and the factors identified, will also vary according to the facts and merits of each case.’
Whilst a degree of latitude is perhaps inevitable, particularly where decisions are necessarily made on a case-by-case basis, the lack of conceptual definition and the fact that many of the aspects of the test invite a substantial degree of subjectivity (is prosecution a proportionate response?) means that the CPS may discern the public interest very differently to the private prosecutor.
Challenging a decision to discontinue
A private prosecutor whose case has been stopped by the DPP may seek judicial review of the decision, but the bar for intervention is very high and even obtaining permission is difficult. As Lord Bingham observed in Corner House, ‘only in highly exceptional cases will the court disturb the decisions of an independent prosecutor’. The courts have repeatedly declined to interfere with a decision to discontinue a prosecution, unless it can truly be said to be ‘irrational’ in the Wednesbury sense, i.e. a decision that no reasonable prosecutor could have made in the circumstances or otherwise unlawful. The recent case of R (on the application of Deripaska) v DPP confirms this position.
It is clear that this general inhibition against interference extends to the decision on the public interest. Of particular relevance to this limb is that the weight attached to a particular factor (harm, seriousness, etc.) remains quintessentially for the decision maker and will only be disturbed, provided all material considerations have been taken into account, if perverse.
Maybe it is (still?) correct that the courts should be shy to second guess the presumed prosecutorial experience and expertise of the CPS. But to what extent is it correct that the DPP is free to substitute his own view of the public interest for that of the private prosecutor? As was recognised in Gujra, there will be cases where the CPS itself declines (or would have declined) to prosecute on public interest grounds, but where it is apparent that it would not be contrary to the public interest for there to be a prosecution at all. It isn’t clear that this distinction is recognised by all those charged with making these decisions. In cases where there is no identifiable harm to the public interest, why should the statutory right to bring a private prosecution be fettered by the application of the Code test, which on a strict interpretation has no application to proceedings brought privately?
Why it matters
The lack of certainty in predicting when a case will be discontinued on public interest grounds and the difficulty in challenging a decision are clearly significant issues for individuals or corporates contemplating a private prosecution and for the lawyers advising them.
Costs implications mean that a private prosecution cannot be treated as a carefree roll of the dice. Those bringing proceedings are likely to have committed significant time, energy and money to the endeavour and that investment may be wasted if, at any time, the DPP takes over and discontinues the prosecution on public interest grounds. There is also the risk that an adverse decision prompts an application by the former defendant for costs against the private prosecutor.
Further, the Administrative Court may take the unusual course of extending a costs order to cover any judicial review hearings if it takes the view that ‘exceptional circumstances’ apply. Given that challenges to the DPP’s decisions are strongly discouraged, there must be a risk that any attempt to judicially review a decision to discontinue a case will be deemed hopeless, thus justifying an extended costs order.
With so much at stake, being able to predict (as closely as possible), the likelihood that a private prosecution may be discontinued is critical. Prospective private prosecutors would be wise to seek guidance and advice from those experienced in this specialist field to help navigate the pitfalls and minimise the uncertainty.
 CPS Legal Guidance, Private Prosecutions, available at https://www.cps.gov.uk/legal-guidance/private-prosecutions.
 R (Gujra) v CPS,  UKSC 52.
 Ibid, paras. 123-133.
 See, for example, Mohit v DPP of Mauritius  UKPC 20 at para. 17, citing Matalulu v DPP of Fiji  4 LRC 712.
 CPS Code for Crown Prosecutors, para. 4.10. But see R (Ram) v DPP  EWHC 1426 (Admin) which suggests that similar wording in charging guidance did no more than restate the two-stage test required by the Code.
 Ibid, para. 4.9.
 Ibid, para. 4.12.
 R (Corner House Research and others) v Director of the SFO  UKHL 60, at para. 30, cited in Gujra in both the CA and SC. And see L v DPP  EWHC 1752 (Admin) at para. 7, a ‘very strict self-denying ordinance’ has been adopted due to the separation of powers.
 R (on the application of Deripaska) v DPP  EWHC 2918 (Admin).
 The Court in the case of R (Mount Cook Land Ltd) v Westminster City Council,  JPL 470 set out a non-exhaustive list of ‘exceptional circumstances’ that would justify departing from the default position that a party is not entitled to any costs beyond the service of the Acknowledgement of Service.
 On the basis that the ‘hopelessness of the claim’ was one of the ‘exceptional circumstances’ cited by the Court in the case of Mount Cook, para. 76(5)(a).