Interactive decision tree
Please use our interactive tool to understand more about the criminal and civil justice systems and how the two systems can interact. It outlines the main steps, and has been specifically created with the individuals and smaller business victim in mind.
Please carefully read about the main differences between the criminal and civil justice systems before using the decision tree.
Criminal: private prosecution
BEGINNING THE PROSECUTION
Public prosecutors must satisfy a ‘Full Code Test’ before bringing a prosecution. This doesn’t strictly apply to private prosecutors, but in reality any successful private prosecution will pass the Full Code Test, which considers that:
• there is sufficient evidence to provide a reasonable prospect of conviction; and
• a prosecution is required in the public interest.
If the test is passed, the prosecution will begin with the ‘laying of an information’ at a Magistrates’ Court. ‘An information’ is effectively a statement describing the allegation and the accused. After receiving an information, a magistrate should issue a summons requiring the attendance of the defendant at court, or in very serious cases, a warrant for the defendant’s arrest, unless there are compelling reasons not to do so – for instance, the allegation is not an offence in law.
A summons then has to be served on the defendant, whether in person or by post. The defendant will then have to attend the Magistrates’ Court.
Throughout this step (and the next one) there are two primary risks to the success of a private prosecution:
A defendant to a private prosecution is able to request that the CPS reviews the evidence.
If the CPS finds that the case passes the Full Code Test it will take no action, unless there is a particular need for the CPS to take over and continue the prosecution – for instance, the offence is unusually serious. A public prosecution will then follow.
If the CPS finds that the case does not pass the Full Code Test then the CPS may intervene, take over the prosecution and discontinue the prosecution. This can be relevant when the prosecution is vexatious or malicious.
ABUSE OF PROCESS HEARING
In exceptional circumstances, the courts will act to stop a prosecution in the interests of justice. There are two occasions when the courts would stop a prosecution:
• when it is impossible for the defendant to have a fair trial – for example, because of adverse media coverage, or because the prosecutor has not disclosed all documents they ought to; or
• when the court’s process has been misused or manipulated – for example, proceedings have been started in bad faith after the defendant was previously given a promise that there would be no prosecution.
Abuse of process hearings can be successful in public prosecutions also, but private prosecutions may find themselves particularly vulnerable to allegations of malice and bad faith.