What is a Private Prosecution?
A private prosecution is a prosecution started by a private individual, or entity, not acting on behalf of the police or other prosecuting authority.
With demands on public funding having been stretched prior to the pandemic, there are increasingly instances of investigative authorities simply not having the resources to investigate and prosecute.
This is especially concerning in relation to allegations of fraud, as investigations can often be lengthy and particularly detailed.
Many find that despite a strong evidential case, authorities decline to act. In these circumstances, an individual or entity may look to engage in a private prosecution to seek redress.
How do Private Prosecutions work?
As with any prosecution which is brought before the courts, a careful analysis of the evidence will need to take place, along with the application of the Full Code Evidential test and the Public Interest test. Assuming these are satisfied, an application can be made to the Magistrates’ Court for a summons to be issued, which will contain details of the charges being alleged.
Many cases involving private prosecutions will find themselves in the Crown Court due to the nature and seriousness of the allegations to be tried. Where allegations of financial loss are made, consideration may be given to applying for a restraint order in order to preserve assets of the accused which may be at risk of dissipation.
Where the prosecution case ends with a conviction, potential sanctions will include a custodial sentence, where relevant, and the Court may be asked to consider whether a confiscation and/or a compensation order should be made.
Can I recover my costs?
Whilst a private prosecution will need to be funded by the person or entity bringing the action, there is provision for recovering the costs, whether or not a conviction is secured, under s17 of the Prosecution of Offences Act 1985.
Further, the decision in the recent costs case of Fuseon Ltd v Senior Courts Costs Office and The Lord Chancellor  EWHC 126 (Admin) clarified the position with regards to the recovery of costs and the considerations the private prosecutor should weigh up in bringing an action.
If you are facing or considering pursuing a private prosecution, or for more information about us and our Criminal Litigation, Investigations and Regulatory services, please contact a member of the team who will be able to assist.