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
PRE-TRIAL HEARINGS
Depending on the seriousness of the fraud, the defendant will either be sent to the Crown Court for pre-trial hearings and trial, or will remain in the Magistrates’ Court for pre-trial hearings and trial. Similarly, if the offence is very serious, or the risk of the defendant absconding is very great, the defendant may either be refused bail, or have strict conditions attached to any bail.
Before the decision is made about which court the defendant will be sent to, the defendant will be given their first opportunity to plead guilty. If the defendant pleads guilty, the process will move to sentencing.
If the defendant pleads not guilty and the case is moved to the Crown Court for trial, then a preliminary hearing may follow if the case is very complicated or trial is likely to last over a month. This will establish the issues, a timetable, and may give the defendant a chance to enter a plea. Following any preliminary hearing there will be a Plea and Case Management Hearing, in which the judge will give certain directions and the defendant will again be given an opportunity to plead guilty. If they are needed, there can be further hearings in the lead up to trial.
Throughout this step (and the previous one) there are two primary risks to the success of a private prosecution:
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:
• Crown Prosecution Service (CPS) review; and
CPS REVIEW
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.