When new specialist legal markets emerge or come to the fore, what often follows is a string of generalist lawyers “having a go”, with potentially disastrous consequences both for the firms and clients. This article seeks to explore this topic against the background of the growing rise in private prosecutions.

Whilst the concept of “private prosecution” may be unfamiliar to many, it is an area that is rapidly expanding due to the fact that the police and other traditional law enforcement agencies have suffered enormous cutbacks and no longer have the resources to dedicate to certain types of crime.

Put simply, a private prosecution is a criminal prosecution pursued by a private person, company or body and not by a statutory prosecuting authority. The right to pursue a private prosecution is an extremely important constitutional safeguard and is a right that is preserved by section 6(1) Prosecution of Offences Act 1985.

As ‘private prosecutions’ are often unfamiliar territory, they can be, and often are, riddled with difficulties at every turn – both procedurally and legally.  To provide the best advice, the initial assessment of the evidence can be critical and requires an understanding borne of experiences as to what will work in the long term.  Simple cases are rare and if clients are to be provided with a proper service they have to be advised as accurately as possible as to what can be achieved and what the potential risks are.

An important part of any prosecution is the disclosure process.  Lawyers acting for the private prosecutor must ensure they understand and are experienced in the criminal disclosure regime (Criminal Procedure and Investigation Act 1996 (as amended), Attorney General’s Guidelines, Criminal Procedure Rules and the Disclosure Protocol). The reason that it requires experienced lawyers is because it’s not simply a case of knowing the rules but what they mean and how they are applied in practice.  It demands thought not only about the prosecution case but that of the defence and how the defence might deploy the material.  If you do not understand – from experience – how criminal cases work then the quality of decision making is going to be limited.  Lawyers should ensure they explain to their client that any material they hold or a third party may hold that may undermine the prosecution case or assist the defence case (upon receipt of a defence case statement) will have to be disclosed to the defence, potentially including material where legal professional privilege may otherwise apply.  Clients must also understand that a prosecutor has a duty to pursue all reasonable lines of enquiry, whether that points towards the guilt or the innocence of the defendant.

Private prosecutions require very careful handling and detailed knowledge of the obligations of a prosecutor, especially considering that the outcome can lead to a person’s loss of liberty.  Those attempting to privately prosecute without the requisite standard of skill and expertise may expose themselves and their clients to unnecessary risks.

Thus, not only is this narrow area of law highly technical in nature, private prosecutors can and often do face multiple applications from the defence during the prosecution process, including abuse of process arguments and applications to dismiss.  The nature of the proceedings means that there will often be greater scrutiny of the prosecution process.  Whilst a private prosecutor is under no obligation to consider the Code for Crown Prosecutors before commencing proceedings, it is sensible to ensure the Full Code Test is met (i.e there is sufficient evidence to provide a realistic prospect of conviction and the prosecution is in the public interest).  Failure to do so may result in the DPP taking over the private prosecution and discontinuing it.  It is important to note that any failure to disclose by the private prosecutor, may affect the evidential stage of the test resulting in discontinuance of the proceedings.

There have been recent cases of  private prosecutors facing wasted costs orders due to allegations of improper conduct by their lawyers, who decided to “have a go” at pursuing a private prosecution without the requisite expertise. The law is clear that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their own or their opponents’ lawyers; Courts have shown their willingness to punish the “have a go” lawyer with wasted costs (against the law firm, and in some cases independent barristers, as opposed to the lay client) when circumstances warrant.

This week we saw the announcement of further budget cuts which could result in the loss of up to 8,000 police officers in the capital and curbs on spending of around £1 billion over the next four years which Metropolitan Commissioner of Police Sir Bernard Hogan-Howe has said “will put London at risk”. Thus, Lord Wilberforce’s words ring true now more than ever: ‘This historical right [of private prosecution] which goes right back to the earliest days of our legal system… remains a valuable constitutional safeguard against inertia or partiality on the part of authority”. However, before embarking on the often rocky road of private prosecution, litigants should ensure that their lawyers have the expertise and experience to deal with every potential stumbling block on their journey.