Expert Legal Adviser MILTON FIRMAN asks: What is a Private Prosecution?

Oct. 20, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

A private prosecution is a prosecution started by a private individual who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions.

The right to bring private prosecutions is preserved by section 6(1) Prosecution of Offences Act 1985. There are, however, some controls:

•the DPP has power under section 6(2) Prosecution of Offences Act 1985 to take over private prosecutions;
•in some cases, the private prosecutor must seek the consent of the Attorney General or of the DPP before the commencement of proceedings.

In principle, there is nothing wrong in allowing a private prosecution to run its course through to verdict and, in appropriate cases, sentence. The fact that a private prosecution succeeds is not an indication that the case should have been prosecuted by the CPS. Parliament has specifically allowed for this possibility; there is no requirement for the CPS to take over a private prosecution.

However, there will be instances where it is appropriate for the CPS to exercise the Director's powers under section 6(2), either to continue the prosecution or to discontinue it.

The private prosecutor is not under a duty to inform the CPS that a private prosecution has commenced. The CPS may therefore find out about a private prosecution in one of five ways:

•where the private prosecutor, or a representative of the private prosecutor, asks the CPS to take over the prosecution;
•where the defendant, or a representative of the defendant, asks the CPS to take over the prosecution;
•where a justices' clerk refers a private prosecution to the CPS under section 7(4) of the Prosecution of Offences Act 1985, because the prosecution has been withdrawn or unduly delayed and there does not appear to be any good reason for the withdrawal or the delay;
•where a judge sends a report to the CPS;
•where the CPS learns of the private prosecution in another way, for example, from a press report.

Where the CPS receives a specific request to intervene in a private prosecution, you should contact the private prosecutor and invite them to supply you with a complete set of the papers they intend to use to support their prosecution. In addition, you should separately contact the defendant and invite them to let you have a copy of any papers which have been served on them by the private prosecutor and invite them further to provide you with any other information they are prepared to disclose which may assist you in the decision-making process. This may be information about their defence or about any relevant public interest considerations: the defendant is, of course, not obliged to provide anything to you at all but they should be given the opportunity to do so. You should notify each party that you have written separately to the other party.

You should ask both parties to supply any information within 14 days and you should advise each that you will base your decision to intervene on the material they choose to supply.

In all other cases, you should adopt the procedure above if, on the available information, there may be a need for the CPS to take over the prosecution.

Where the private prosecution in question is one brought by another public authority which is a signatory to the Prosecutors' Convention, then you should follow the principles of liaison set out in that document.

The CPS should take over and continue with the prosecution if the papers clearly show that:

•the evidential sufficiency stage of the Full Code Test is met; and
•the public interest stage of the Full Code Test is met; and
•there is a particular need for the CPS to take over the prosecution.

All three elements outlined above must be satisfied before the CPS takes over and continues with the prosecution.

The final consideration is designed to cover the situation where, for whatever reason, the investigative authorities with which the CPS usually deals have not brought the case to the CPS' attention and yet it is a case that merits the prosecution being conducted by a public prosecuting authority rather than by a private individual. This may be because, for example, the offence is serious; there are detailed disclosure issues to resolve; the prosecution requires the disclosure of highly sensitive material or the conduct of the prosecution involves applications for special measures or for witness anonymity. This list is not exhaustive.

It is also necessary to consider whether or not the case is of a type that the CPS normally conducts following a police investigation.

All these and any other relevant factors must be weighed together in order to determine whether there is a particular need for the CPS to take over the prosecution. The existence of one factor does not necessarily mean that the prosecution must be taken over.

In cases where you decide that taking over a private prosecution in order to continue with it is the appropriate course of action, then, unless there are exceptional circumstances, you should write to both the private prosecutor and the defendant explaining the reasons for your decision.

A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.

However, even if the Full Code Test is met, it may be necessary to take over and stop the prosecution on behalf of the public where there is a particular need to do so.

The policy in intervening in private prosecutions when there is no case to answer, or where the public interest factors against the prosecution outweigh those in favour, is lawful, but should be applied to each charge individually.

In cases where the CPS decide that taking over a private prosecution in order to stop it is the appropriate course of action, then, unless there are exceptional circumstances, the CPS should write to the private prosecutor explaining the reasons for your decision.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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