Blog Private Prosecution 5th Apr 2023

The Criminal Procedure (Amendment No. 2) Rules (S.I. 2022/815): subtle but important changes

There is of course nothing more exhilarating than amendments to the Criminal Procedure Rules: the Criminal Procedure (Amendment No. 2) Rules (S.I. 2022/815) (“the Rules”), which came into force on 3 October 2022, are no exception. The Rules introduce subtle but important amendments to the procedure governing the bringing of private prosecutions, and applications for costs from central funds. The devil is in the detail: this article seeks to set out the significant changes.

Criteria for declining to issue a summons

In R (on the application of Kay and Anor) v Leeds Magistrates’ Court [2018] 2 Cr App R 27 the Court of Appeal summarised existing caselaw on the circumstances in which a magistrate might refuse to issue a summons. The allegation must be an offence known to law, the ingredients of the offence must be prima facie present, the offence must not be time barred, the court must have jurisdiction and the informant must have the necessary authority to prosecute.  The threshold test for issuing a summons is not a low one[1], but where the above circumstances apply the Magistrate ought to issue the summons unless there are compelling reasons not to do so: where the application is vexatious, an abuse of process, or ‘otherwise improper’.

Cases following Kay and Anor indicated a degree of uncertainty as to how the test set out above should be applied. In R (on the application of Smith-Allison) v Westminster Magistrates’ Court (No. 2) [2021] EWHC 2361 (Admin), the Court of Appeal overturned the decision by the Magistrates to decline to issue a summons where the ‘compelling grounds’ were inconsistencies in the evidence and where the finding that the application was vexatious (based on there having been civil proceedings) could not be substantiated. Conversely, in Asif v Ditta [2021] EWCA Crim 1091, following a summons that was issued, judicial concerns were raised in the Crown Court about the propriety of the prosecution[2]. It was later stayed as an abuse of process.

The Rules introduce at 7.2(14) the following circumstances in which the court ‘may’ decline to issue a summons:

(a) a court has previously determined an application by the same prosecutor which alleged the same or substantially the same offence against the same defendant on the same or substantially the same asserted facts;

(b) the prosecutor fails to disclose all the information that is material to what the court must decide;

(c) the prosecutor has—

(i) reached a binding agreement with the defendant not to prosecute, or

(ii) made representations that no prosecution would be brought, on which the defendant has acted to the defendant’s detriment;

(d) the prosecutor asserts facts incapable of proof in a criminal court as a matter of law;

(e) the prosecution would constitute an assertion that the decision of another court or authority was wrong where that decision has been, or could have been, or could be, questioned in other proceedings or by other lawful means; or

(f) the prosecutor’s dominant motive would render the prosecution an abuse of the process of the court.

These principles derive from the caselaw, but their codification in the CrimPR is likely to produce a more consistent approach. Whether this is likely to create a higher or lower burden for private prosecutors is difficult to judge: Magistrates will be directed to a menu of reasons for declining to issue a summons, but the prescriptive list will make it more difficult for Magistrates to reach irrational decisions of the type overturned in Smith-Allison.

Requirement to identify the prosecutor

In October 2020, the House of Commons Justice Committee recommended that ‘every defendant who is privately prosecuted should be informed of his or her right to seek a review from the CPS. We recommend that this change be implemented by a change to the Criminal Procedure Rules’.  The new Rule 7.4 requires that the summons must identify the prosecutor, unless the prosecutor is a public authority. The purpose of the rule, according to guidance published by the Rule Committee[3], is so that ‘the defendant could, if they wish, oppose the continuation of the proceedings in the court, or invite the Director to intervene, or both’. This is a subtle change, but one that may increase the likelihood of challenge to the summons.

Information as to costs

In R (TM Eye Limited) v Crown Court at Southampton and Others [2021] EWHC 2624 (Admin), the High Court ruled that a court which had dealt with a private prosecution should require more information about the prosecutor’s claim for costs where the information supplied was not sufficient for the court to decide whether an order should be made and what limit (if any) ought to be imposed. In fact, the Judge at first instance had fallen into error in refusing the application under s. 17 of the Prosecution of Offences Act 1985, but the High Court refused to overturn the Judge’s decision because the prosecutor had contributed to the error by failing to properly present its application.

The new Rule 45.4 provides that the private prosecutor must provide certain standard information for the purposes of making an application under s. 17 (e.g. schedules of work) – but also that the court should be furnished with ‘such further particulars, information or documents as the court may require’ in considering the application. Again – nothing seismic, but a change that may open the door to a greater degree of judicial scrutiny of applications for costs from central funds.


Rob Dacre

[1] R (Johnson) v Westminster Magistrates’ Court [2019] 1 WLR 6238.

[2] HHJ Hehir, at an application made on behalf of the prosecutor for restraint, expressed concern that ‘the private prosecution in a sense might not be characterised as a rather heavy-handed business tactic’.


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