Private prosecutions are a historic feature of the criminal justice system, and have persisted despite the creation first of the Director of Public Prosecutions (DPP) in 1879 and later of the Crown Prosecution Service (CPS) in 1986.

The first procedural step for any private prosecutor is to lay an information at a magistrates’ court. Section 1 of the Magistrates’ Courts Act 1980 governs such courts’ issuing of process; that is, on the laying of an information, the issue of a summons or an arrest warrant concerning the person named in the information (the suspect), in order to bring the person before the court to answer to the allegation.

Private prosecutions for crimes of universal jurisdiction invariably involve an application for an arrest warrant rather than a summons: by definition the offence will be serious, the subject of the information is usually resident outside the UK where a summons can safely be ignored and only the coercive nature of an arrest warrant, executed once the subject is located within the UK, will be effective.

On a number of occasions since 2000, attempts have been made by various organisations to initiate private prosecutions against foreign military and political figures by obtaining arrest warrants. The government reacted to the potential abuse of court process through the use of it for the purpose of causing embarrassment and without any realistic prospect that cases would come to trial, by enacting section 153 of the Social Reform and Police Responsibility Act 2011. This measure requires the consent of the DPP to be obtained before the magistrates’ court can issue a warrant in universal jurisdiction cases brought by a private prosecutor.

An application for the DPP’s consent must contain:

  • Full details of the suspect and details of when he/she is arriving into the jurisdiction and by what means;
  • Details of his/her position of authority and the nature of his/her visit;
  • Sufficient admissible and reliable evidence to provide a realistic prospect of conviction for each of the charges for which DPP consent is sought;
  • Where known, any unused material which might undermine the prosecution case or assist the defence.

The evidence will then be considered in accordance with the Code for Crown Prosecutors (the “Full Code Test”), which contains two stages: the evidential stage and the public interest stage.

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. If there is insufficient evidence to satisfy the evidential stage of the Full Code Test, the prosecutor will consider the principles set out in the Threshold Test. This may only be applied where the suspect presents a substantial bail risk and not all the evidence is available at that time when he or she must be released from custody unless charged. If the Threshold Test is satisfied, then the prosecutor will provide written guidance to the organisation as to what evidence is required to bring the evidence to the standard required by the Full Code Test.

The DPP will also consider the public interest factors in favour of and against granting consent as part of the second stage of the test. These include issues such as the severity of the crime, the level of culpability of the suspect, the circumstances of and harm caused to the victim, the age of the suspect, the impact on the community, whether prosecution is a proportionate response and whether sources of information require protecting.

If there is sufficient evidence and it is in the public interest the DPP will grant consent for the issue of a warrant. In accordance with CPS policy, the CPS will take over the prosecution, which will be dealt with by a specialist prosecutor in the Counter Terrorism Division. Likewise, if there is insufficient evidence and/or it is not in the public interest then the DPP will not grant consent. In this situation, written guidance will be provided to the private individual or organisation suggesting further lines of enquiry or ways in which information can be turned into admissible evidence.

The effect of this change has been to greatly limit the use of private arrest warrants in such universal jurisdiction cases. The requirement of DPP consent not only adds a hurdle but also adds to the length of time required to obtain an arrest warrant.