It seems that we live in an increasingly litigious world, demonstrated by the fact that private prosecutions, once a rarity, are now becoming an increasingly common way to resolve disputes. In fact, as a criminal defence solicitor, I have defended more private prosecutions in the last two years than in the preceding twenty years of practice.

There's no one definitive reason for this trend, but rather a combination of factors that include overstretched resources within the police and Crown Prosecution Serviced (CPS) and the fact that private prosecution has become a popular tactic to resolve what might previously have been regarded as civil disputes. For example, recent cases handled at our firm involved allegations of serious fraud by former employers or business associates which had been referred to, but not taken up by the appropriate police forces.

The rise of the private prosecution

As a growth area within the legal sector, niche firms devoted to bringing private prosecutions are springing up, while existing firms are setting up dedicated departments to deal with demand. In fact, there is now a Private Prosecutors Association for lawyers, accountants and associated professionals operating in this area. So, what are the specific problems to look out for if defending a private prosecution?

The first issue is whether to ask the CPS to intervene; either to take over the prosecution, or even better, to take it over and drop it.  As there is no obligation on a private prosecutor to notify the CPS of the case, it will most likely to be down to the defence lawyer to draw it to their attention.

The role of the CPS

In deciding whether to take over a case and continue it the CPS must apply both the evidential sufficiency and the public interest test just as they would in any other case. However, they must also consider whether there is a "particular need" for them to take the case over. This may occur where a case is serious, involves complex or sensitive disclosure issues or special measures or anonymity applications are to be made. There is also a specific reference to taking over where the prosecution is a "device to pursue a personal agenda arising from a former relationship". Clearly there is a need for an independent mind to be applied where at least part of the motivation for the prosecution appears to be personal animosity; for example where a civil remedy would seem more appropriate or has already been obtained.

Of more interest to the defendant and their solicitor is the power that the CPS has to take over and halt a prosecution. This might occur when the private prosecution interferes with an existing investigation or prosecution, or when the defendant has already been dealt with, for example by accepting a caution, or has been promised that they will not be pursued. The CPS must also consider whether the prosecution is vexatious or malicious. This is the area which often presents the greatest opportunity when notifying the CPS of the prosecution and making a representation as to why they should intervene and stop a case. There is further, helpful guidance on the CPS website

While this may appear to offer an easy way out, in my experience these decisions can take a long time and, perhaps because of a lack of resources, the inclination seems to be not to get involved unless there is a very good reason to do so. However, as the first opportunity to halt proceedings before they get started, any arguments used may also be utilised later in an application to stay or stop the proceedings as an Abuse of Process or an improper use of the criminal courts.

The problem with disclosure

One of the most contentious issues with private prosecutions is disclosure. The reason for this is that it is often the principal bringing the prosecution who holds all the crucial evidence in the form of business documents, records of communications, minutes of meetings etc., and therefore controls what is passed to their lawyers for onward disclosure to the defence.  A defendant may be able to point their solicitor towards requests for particular documents that they know exist, but there may be other documents, such as meeting minutes that they are not aware of, which could be hidden by an unscrupulous prosecutor.

While private prosecutors are subject to the same obligations and procedures as the CPS, there is no independent investigator with the power to enter their offices and seize documents and computers for analysis. There is just the lawyer who is being paid by, and owes a duty to the prosecutor as well as the court. How to negotiate this relationship has been the subject of a recent case in which the conduct of the prosecutor was criticised. Disclosure is therefore something for which the defence lawyer must have a keen eye, asking their client at each turn what they think may not have been disclosed as well as instructions on what has. There is very likely to be a greater need to make applications to the court to ensure that everything that should be is disclosed and failures to disclose may give grounds for an application to stay the proceedings.

Prosecutor and witness

Another related issue not uncommon in private prosecutions arises where the person bringing the prosecution is also the principal witness for the prosecution. As their client, the lawyer should be having full and open discussions with them over the issues in the case and the best tactics to be adopted. On the other hand, as a witness there are things which should certainly not be disclosed, as with any prosecution witness in a criminal trial. If this relationship is not handled carefully then this may also give grounds to stay.

However, applications to stay proceedings because of difficulties with disclosure and/or the relationship between the prosecutor and their lawyers have recently been rejected, and it seems that the judicial tide may be turning against this.

Finally, it seems that different motivations may be at play when compared with a normal CPS prosecution, which can affect the outcome of private prosecutions. A case I was involved in recently was resolved unexpectedly on the first day of what was to have been a six week trial, begging the question what had brought the prosecutors (whose actions up to then had bordered in the vindictive), to make such a reasonable offer at the door of the court? Was it the cost of six weeks of a QC, junior counsel and instructing solicitor's time? Was it the time that they themselves would have to take or the prospect of being cross-examined on behalf of multiple defendants with the accompanying challenge to their own character and conduct in a public court with the potential effect that might have on their ongoing business? We will never know, but it is worth bearing in mind that different motivations may come into play when the prosecutor is an individual or company, rather than the state.