A private prosecution is described on the CPS website as
A prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other prosecuting authority. A ‘prosecuting authority’ includes, but is not limited to, an entity which has a statutory power to prosecute.
As an individual, you can bring a private prosecution without the help or assistance of the police or CPS. Private prosecutions are generally worth considering when the police refuse to bring charges against someone where you believe an offence has been committed.
The police may not charge suspects for various reasons, they include, lack of evidence of an offence, lack of evidence of a suspect’s involvement in an offence, lack of public interest or some would say an intent to deprive a victim of justice.
The right to bring private prosecutions is given by section 6(1) of the Prosecution of Offences Act (POA) 1985. There are, however, some limitations which I will touch on in this article or you can review directly on the CPS website.
So, given that you have the right to bring a private prosecution, how do you do it?
Firstly, the process, like most legal processes, has complexities and this is why those in the legal profession demand high tariffs for their legal advice, but a layperson can bring a private prosecution so long as they take the time to do a little research and study.
Some would say it is easy and you do not need legal advice or representation. This is incorrect and without any legal advice or knowledge, the process will fail at the first hurdle or soon after as this fools discovered.
This failure is usually because the private prosecutor does not understand the full process, there are strict rules that must be followed yet many wannabe prosecutors believe all they need to do is ‘wing it‘ and they will get to cross-examine an alleged defendant in a witness box. The court will not allow this.
The Judge in the proceedings is akin to a referee in a football match or other strict rule-based game. The role of the referee (or Judge) is to ensure both parties (the prosecution and the defence) play fair and play by the strict rules of the game and either party can and will be penalised for failing to follow the rules or cheating.
This is in many ways, the purpose of the court process, clearly the Judge then has the sentencing power of any decisions, but remember, the Judge is (in an ideal world) impartial and cannot assist either party with any bias.
As a private prosecutor, you are the prosecution and without legal representation, you are said to be a litigant in person (“LiP“). Litigants in person do get some leeway from the court in that the court can assist them impartially in the process (as must the opponent advocate if legally represented) but a Court will expect you to know the Criminal Procedure Rules. The rules apply to all whether you know them or not.
So, moving on to how to bring a private prosecution, the first and obvious advice would be, seek legal advice. Your chances of success are much greater if you instruct a Solicitor/Barrister than going it alone. The downside is generally cost and this can be high, although, any private prosecution you bring and the associated cost can be reclaimed in full (at legal aid rates) from central funds whether you win or lose. The only caveat I am aware of is that the Private prosecution must be brought correctly and any improper use of the process and you will not receive your funds and may even face other sanctions.
Disclaimer, I am not a solicitor and this article is based on my own knowledge, research and experience. This is not legal advice.
For the purpose of my step-by-step guide, we will use the following scenario facts for which an application for a private prosecution is made.
You were walking through a park and a person, for no reason, slapped you in the face while you walked past them.
You have an independent witness who captured the incident on their phone’s video camera.
The suspect has no reasonable defence for the attack and is clearly identified in the video.
The police have investigated and for whatever reason (irrelevant to this guide), they did not prosecute.
Step 1. identify the crime or offence
It may seem obvious, but you must research and identify the offence (or offences) committed.
In our scenario, you were struck across the face and contact was made causing a superficial injury of a red slap mark. This would most likely be a charge of assault by beating as it is an intentional or reckless application of unlawful force (the slap), however slight.
By way of example, if no force was used, (i.e. no contact made), then the lesser charge of assault would be appropriate as this only requires you to apprehend immediate unlawful violence. So, while this charge is a lesser charge, some would think it may be easier to get a conviction with a lower burden of proof, but the criminal procedure rules (CPR) state this is not allowed, lower charges should not be brought to ensure a conviction, the higher charge should be brought.
Be very careful attempting to bring higher charges (such as ABH) because maybe you think you can get a more severe penalty for the defendant. In our scenario, ABH (Assault occasioning Bodily Harm) would be incorrect as it requires a specific threshold of harm and simply the reddening of the skin would not suffice and prosecution would likely fail.
So, we have identified the offence as Assault By Beating, which is Common Assault, contrary to s.39 Criminal Justice Act 1988.
Step 2 – Identify any time constraints.
Many criminal offences have a time limit for which a prosecution can be brought, this is known as the statute of limitation.
More serious offences have no statute of limitation (such as murder) and they can be prosecuted many years or decades after the offence has been committed, however, less serious offences have time limitations.
In our scenario, assault by beating is a summary-only offence. Summary-only offences can only be tried in Magistrates Courts and generally have a statute of limitations of 6 months from the time the offence was committed until the application is made for prosecution.
In our scenario, we need to be aware that to bring a private prosecution, we must make the private prosecution application within 6 months of the offence being committed, even a day over this time constraint will render the offence time-barred.
Step 3 – Evidence
Evidence is crucial and without it, the prosecution will fail.
In our scenario, and without any evidence, your allegation will most likely be simply denied.
Unless there are strong mitigating circumstances (beyond our scenario) in support of your allegation, then this will likely fail, as to get a conviction, the court must be sure, beyond a reasonable doubt that you were (i) hit, (ii) that it was intentional and (iii) that it was not in self-defence.
For our scenario, we are assuming there is evidence giving a realistic prospect of conviction, generally taken to mean a conviction is more likely than not given the available evidence.
You do not need to present the evidence at the application stage, but you do need to identify what evidence you have and what you intend to rely on if a summons for private prosecution is granted.
It is always better to have your case in order before making your application as when (or if) your application is granted you may find yourself under some pressure to meet specific deadlines imposed on you by the court. (see further on)
Step 4 – The application
The application should be made on the correct form. (links at the bottom of the article) which is valid at the time of posting (verified September 2022).
You will see that the application is in sections.
The top section is not numbered, but you must complete this section with your details and the details of the proposed defendant. Complete this carefully and remember, the defendant may get a copy of this so you may wish to use a mobile number rather than your home telephone number (or vice versa).
Insert the alleged offence(s), in our case, this will be assault by beating.
You must also add the date of the alleged offence, this is important as the Court will verify if the offence is within time. Do not attempt to ‘fool’ the courts with an incorrect date to make an ordinarily out-of-time offence ‘in time’, the court will validate evidence at a later stage and any attempt to abuse any part of this process will go against you.
For any prosecution, you must have the defendant’s details who committed the offence. Without a defendant’s name, your prosection will be rejected. If you do not know the defendant’s address, then your application cannot be served upon them, and you may need to consider this as an application for a warrant for arrest as well as a summons. We will assume the address is known in which case add it to the top section.
Section 1 – Consent to prosecute
This will generally be NO, and for our scenario, this is the case. As this section clarifies, the legislation that you will have researched in the first step will identify if the offence requires specific consent for you to bring a private prosecution.
Section 2 – Previous application(s)
This requires you to notify the court if you have made any previous application for a private prosecution related to the same or any of the allegations submitted. This will, in most applications be NO. This does not include if the police or CPS have brought a prosecution which is covered in section 3.
If your application has been rejected for any reason, then a re-application should have section 2 marked as Yes to ensure transparency and continuity and then your application must be inclusive of new evidence not considered in previous applications.
I have for example made an application for a private prosecution in which I made a simple error in a relevant date. This was the first application I had submitted for this case, so the Section 2 box was No.
The court rejected my initial application based on that simple error and told me in their response to re-make my application with the correction. Had the court allowed my application, this could have led to a trial which would have been dismissed at a much later stage based on incorrect facts, so it was good that the application was rejected at this early stage.
When I re-made my application I ticked Yes, as I had made a prior application, and documented the reason in section 2 (that a date error was noted by the court). The last thing you want is a second application being rejected for something as simple as this. Some may say this is unnecessary, but by following the application form to the letter, this is the correct approach and you will not be criticised for doing so.
Section 3- Other proceedings.
You must notify the courts whether you know if another prosecutor has brought any proceedings over the same case. This may be the police, the CPS or even another private prosecutor.
Section 4- Details of the alleged offence(s)
This is where it can start getting a little technical and you are expected to be able to stand on your own two feet.
You must now describe the offence in ordinary language (don’t try to speak legalese). In our example, you could say
The defendant slapped me across the face. This offence amounts to assault by beating contrary to section 39 Criminal Justice Act 1988 as the Defendant intentionally and recklessly used unlawful force causing me superficial injury.
This tells the court exactly what you say happened in plain English language taken from legislation, what offence you say was committed, again from the legislation. It also describes why the defendant’s conduct amounts to the offence alleged. For the purpose of our scenario, this should be sufficient for Section 4.
Section 5 – Summary of the circumstances
This is a more detailed summary of the circumstances of the offence, for our scenario, it could be
On 1/4/2022 I was walking through the park. I was alone and noticed a male walking towards me. He was staring at me and I was trying to avoid his gaze. On passing the defendant, he raised his right arm and intentionally struck me across the face for no reason and laughed. This left me shocked, dazed and in pain. I noticed a passerby was recording on her phone and she told me see knew who the man was and had managed to capture the entire incident on her phone. She has agreed to provide a statement which I will exhibit as evidence along with her mobile phone recordingof the assault.
This is a good summary of the circumstances, it identifies circumstances that give the court an overview of how the offence came about and that you have a reliable witness with evidence. You declare that such evidence will be exhibited.
Imagine if this section was not required and let’s say the circumstances were that you were walking through a park, you had a wasp land on your face and a passer-by in a knee-jerk reaction to seeing the wasp, tried to swat it away from you but accidentally slapped you. This changes the entire perspective of the incident and now the offence is not necessarily made out as while it appears to be assault, it now lacks the ‘intent to use unlawful force‘.
It is therefore helpful to understand what the court is looking for within the sections. Remember, do not try to fool the courts with any incorrect facts or you will be penalised.
Section 6 – Application for warrant
For our scenario leave all boxes blank. So long as you know the defendant’s name and address, no warrant is required for the defendant’s arrest. The details in Section 6 explain where a warrant may be necessary and is out of the scope of my ‘how to guide’.
Section 7 – Declaration
Finally, you must sign and date the application. This now forms a legal court application. Although the form in itself is not a statement of truth, the court may seek for you to make representations of your application on oath. You do not have an automatic ‘right of audience’ therefore when you attend court as the prosecution, you will likely be put on oath before you can address the court.
While on oath, any known false information you give may land you in serious trouble. Make sure everything you write is the truth before you sign and submit.
Step 5 – Submitting to the Court.
This is simply a case of sending your completed application to the court. A subject in the email of ‘Private Prosecution Application’ will usually suffice, with a note in the email such as
please find attached my application to bring a private prosecution.
This is just a basic example. Feel free to use your own format.
You can send the application to any magistrates court in the country, it does not need to be your local magistrates but some things to consider.
- If you are called to make representations before the court makes its decision on whether to grant your summons, you will have to attend the court, so it will be handy for you if it is local.
- If you are making an application against a public servant, (such as a police officer), you must not apply in the county that the officer holder serves, this is to avoid a conflict of interest. If you do, it will likely be transferred to a county of the court’s decision.
- The location of the defendant is likely to be where the hearings will take place. The defendant can seek for the hearing to be re-located to his/her local court, the prosecutor can make submissions to it remaining local to the prosecutor. The court will decide based on both parties submissions.
You can find the court email addresses via Court Finder here.
Once submitted, wait for directions from the court, this can take a couple of weeks.
Possible outcomes of next steps.
The court clerks will refer your application to the court legal department, they generally review cases before they are put before a judge. They will often check for obvious mistakes and may seek some clarification(s) relating to your application.
If you find it difficult to get past the legal assessment, then your chances of winning at trial are slim… (at best), it can be complex to the layperson.
A Judge will not grant a summons, even if the offence is extremely serious unless there is evidence of the offence and evidence linking it to a suspect.
You can’t rely on unfound assumptions or, ‘well who else could it be‘. Evidence is key and that is your role as the prosecution and the investigator. Whatever you think, you will need to do some study of the law in relation to the offence you alleged, check that the ingredients of the offence match what happened and check what defences are allowed by the suspect.
Use an objective mind to consider if the defendant has a defence in law. Whether you agree with their defence or not, you must consider their likely defence against the allegation with an objective mind.
If the summons is granted, you will be notified and the Defendant will be summoned by a postal requisition. They will be told what charges they have been alleged to have committed, what law it breaches and what they must do.
If a summons is not granted, you will be given reasons.
If you are asked to make representations, the court may call you to open court to explain your case directly to the Judge. This will almost certainly be in a public hearing and the public can attend. It is unlikely at this stage that the Defendant will be aware so will not attend, but Court can, if they wish, ask for representations from both parties before issuing a summons. Expect the courtroom to have several solicitors/barristers present (related to other cases) and also expect members of the public to be in the public gallery watching public hearings. I say expect this so that you are not shocked to find a dozen people watching you. It is quite often the case that the courtroom is empty of members of the public. But just be prepared for an audience.
What happens next? (assuming a summons is granted)
This depends on several factors, I will address some, but will review and update this article as and when I get feedback.
If the defendant pleads guilty – They will be convicted of the offence in line with standard court procedures, and the court will give all the directions on when/how this will happen.
If the defendant pleads not guilty – then several things will happen.
The court will make directions to the prosecutor (you) and the defendant for case management. You need to then prepare and manage your case and will be given deadlines for doing so.
You will need to provide a prosecution bundle to the Court and the Defendant.
You will need to correctly serve witness statements and exhibit your evidence.
You will need to prepare a schedule of unused material.
Ultimately, you serve all evidence to the Defendant so they can see the case against them. This is full disclosure, you must disclose everything. You cannot pull out a sneaky piece of evidence on the trial date to ambush the defendant, that is disallowed and you will be criticised by the court and the evidence will likely be refused to be used as evidence.
That is about as much as I can add due to the varying factors as the case progresses.
If you have anything to add, or any questions you want to ask, please post a comment below and I will do my best to answer.
The article is based on my own knowledge and experience, it is not legal advice.
I have created this because I have been asked hundreds of times on different platforms how to bring a private prosecution.
Article by: Paul Ponting