Private Prosecutions – An Update

We wrote in June 2018 about the key issues to consider in making the decision whether or not to pursue a private prosecution and in what circumstances it might be the right option (see here). In light of continuing budget restrictions faced by enforcement agencies and the police, private prosecutions remain on the agenda and an option to be considered in the right circumstances.

A private prosecution is a criminal prosecution commenced by a private individual or entity who is not acting on behalf of the police or any other prosecuting authority. Bringing a private prosecution is fraught with difficulty for the uninitiated. Lawyers acting for the "prosecuting party" face unique problems as they have to balance, amongst other things, the fundamental obligation to act in the public interest and to act as a minister of justice. These obligations will not always be aligned with the interests of the client who has instructed them to pursue the prosecution. A private prosecutor also faces unique problems arising from the lack of powers to compel disclosure of documentary and witness evidence, powers which a prosecuting authority has, but which are not replicated for the private prosecutor and certainly not available otherwise than by application to the Court for disclosure orders/search orders etc.

However, despite being subject to the same obligations to act as a minister of justice as public prosecutors appointed by the state, private prosecutors are not legally obliged to comply with the same codes as public prosecutors (e.g. the Code for Crown Prosecutors). In such circumstances the way private prosecutions have been pursued in the past has, in some instances, been subject to criticism. As a consequence, calls were made for a code to be introduced to bring a degree of clarity to the role of the private prosecutor which would benefit clients seeking to pursue them and the justice system generally in handling them.

The Code for Private Prosecutors

In May 2018, the Private Prosecutors Association announced plans to publish a private prosecution code of conduct and on 18 July 2019 they published a "Code for Private Prosecutors" (the "Code"). The Code aims to "provide a benchmark for best practice in the conduct of private prosecutions" and address some of the unique issues that are faced by those bringing private prosecutions. Compliance to the code is voluntary.

The Code provides welcome guidance which on the face of it should help improve...