Who is the Private Prosecutor?
By section 6 of the Prosecution of Offences Act 1985, Parliament reaffirmed, albeit in qualified terms, the right of “any person” to bring a prosecution. Part 7 of the Criminal Procedure Rules 2015, providing for the commencement of a prosecution, refers to “a prosecutor” laying an information.
A named individual
At first blush, it appears as though the prosecutor must be an individual. Common practice dictates that these provisions do not preclude a corporate body or limited company from initiating a private prosecution – but does the prosecutor, named on the Charge Sheet or Indictment have to be an individual person?
Schedule 1 to the Interpretation Act 1978 defines “person” as including a “body of persons unincorporate […] unless a contrary intention appears.” However, in Rubin v DPP  2 QB 80 the court concluded that the above provision of the Interpretation Act 1978 did not apply to the laying of an information and therefore to the bringing of a prosecution.
The issue has not been considered by the Court of Appeal or the Supreme Court but has been by the High Court on a number of occasions.
In Rubin the defence appealed by way of case stated, submitting that the information laid against the appellant had been invalid as the prosecutor could not be “The Thames Valley Police”. The court held that a prosecution must be brought by a named, identifiable individual; that individual would have to be named as the informant on the information and therefore, the prosecution by “The Thames Valley Police” was not proper. The information should have listed a police officer as the informant– either the Chief Constable, or the officer who had observed the defendant committing the alleged offence. However, the information and subsequent summonses were not invalidated by the error, and the court dismissed the appeal, branding it as “without any merit whatsoever”. This was because it was clear who was bringing the prosecution by laying the information, namely, the officer who had witnessed the offence.
Identity of the prosecutor
The court held that the key considerations in determining the validity of an information were:
- The right of the defendant to know the identity of the prosecutor; and
- The authority of the prosecutor to bring the prosecution.
In Ealing Justices ex parte Dixon  2 QB 91 the court considered the point obiter. It was doubted whether the reasoning put forward by the court in Rubin could be maintained. The court held that a body corporate was able to initiate a prosecution but that it was “preferable” that an individual lay the information and therefore commence it, albeit that the individual would be acting on behalf of the body corporate. The court held as follows:
“A company can own property and have rights; therefore it should be able to protect that property and those rights by prosecuting. No good reason existed to place a company at a disadvantage. If a company, whose identity and address were known and whose officers were ascertainable, instituted proceedings the justices had a duty to see that no person was committed for trial frivolously or without adequate supporting evidence and that no person was convicted summarily unless the evidence justified it; […] There was no ground for saying that “person” in section 6(1) of the Act of 1985 did not include a body corporate”.
The approach set out in Rubin, that the identity of the prosecutor is the paramount consideration, was confirmed in X v Benjy’s Group Ltd  CLY 1192. It was further held that the defendant should make efforts to ascertain the identity of the prosecutor / informant and should not make complaint before having done so.
The validity of the information/summonses
The courts have continued to uphold the validity of summonses even where a named individual is not listed in the information, e.g. R (on the application of Johnson) v Stratford Justices  EWHC 172 Admin.
In Monks  EWHC 473 (Admin) the court considered, inter alia, whether a Local Authority could bring a prosecution in its name, rather than that of an individual within the Authority. The court held that it could, dismissing the appeal for a variety of reasons. On the relevant point the reasoning of the court in Rubin in dismissing the appeal was emphasised, namely that the prosecutor could have easily been identified and was therefore not unknown to the appellant. In Monks the case stated recorded that no prejudice was caused to the appellant because “he knew perfectly well who was taking him to court and why”. This was treated as a finding of fact and therefore the prosecutor was easily identifiable. On this basis, the information and subsequent summonses were not a nullity.
Therefore, it seems that the named prosecutor being a company will not render a prosecution invalid. However, the case law seems to suggest that the prosecution being brought in the name of an individual on behalf of the company is at least “preferred”. The paramount consideration is that the prosecutor can be identified. This is an important consideration for corporate clients wishing to instigate a private prosecution to bear in mind in order to avoid unnecessary litigation and delays on the issue.
Authority of the individual nominated to bring the prosecution
Where an individual is to bring a prosecution on behalf of a body corporate, it is important to ensure that s/he has the appropriate authority to do so. In Norwich Justices, ex parte Texas Homecare  Crim LR 555 informations had been signed by the “Senior Environmental Health Officer”, who had no authority to do so under the relevant legislation. The informations were later amended to substitute the signature of the person who did have the necessary authority. However, the amendment took place after the six months’ deadline for commencing a prosecution had elapsed. The Divisional Court quashed the convictions, holding that where the person serving an information has no authority to do so, the information is rendered a nullity. Since the informations as served were invalid, they could not found any jurisdiction, and this was not curable by amendment.
Legal personality of the prosecutor
It is, of course, essential that the prosecutor has legal personality. There may be no difficulty in a limited company or limited liability partnership bringing a private prosecution, however, the case will be different for a limited partnership. A limited partnership has no separate legal personality to that of the partners who comprise it and therefore would not be able to bring a prosecution. A named partner/individual from the company would have to bring the prosecution and lay the information in their own right, as no prosecution could be brought by, or on behalf of, the partnership itself.
To conclude, a prosecution can be commenced by a body corporate and the courts have generally been unwilling to allow informations to fail on such technicalities where the prosecutor is easily identifiable. However, it is “preferable” that a prosecution is commenced by a named individual. The prosecutor must have legal personality and the authority to bring the prosecution.
For the private prosecutor, it will be important to bear this in mind when commencing the prosecution in order to ensure that the prosecution itself does not become a nullity. For the defendant, it will be equally important to verify the prosecutor’s identity can be identified and that s/he has the relevant authority to prosecute.
Julia Faure Walker & Hannah Thomas