Private Prosecution vs CPS Prosecution: Bringing a Criminal Case
Any person can bring a private prosecution under s.6(1) of the Prosecution of Offences Act 1985. This comparison explains when private prosecution is appropriate, how it differs from CPS prosecution, and the significant risks and costs involved.
Overview
The right to bring a private prosecution is a constitutionally important but little-used mechanism in English criminal law. Section 6(1) of the Prosecution of Offences Act 1985 preserves the right of any person to institute and conduct criminal proceedings. This right allows individuals, companies, and organisations to bring prosecutions where the police have declined to investigate or the Crown Prosecution Service (CPS) has decided not to prosecute. Private prosecutions are increasingly common in fraud, IP theft, and data theft cases where the state has declined to act. However, they are expensive, legally complex, and carry significant risks — including the risk of a costs order against the private prosecutor if the prosecution fails or is brought improperly.
Side-by-Side Comparison
Private Prosecution
Pros
- Available when the police or CPS decline to act — an important safety valve for access to criminal justice
- Private prosecutor can choose specialist counsel and control the pace and strategy of proceedings
- Used successfully in high-profile fraud, IP theft, and corporate misconduct cases
- Acquittal costs: successful defendants in private prosecutions can claim costs from central funds (Prosecution of Offences Act 1985 s.17)
Cons
- Expensive — private prosecutor funds the entire prosecution including counsel, expert witnesses, and disclosure review
- CPIA 1996 disclosure obligations apply — failure to comply can result in stay of proceedings for abuse of process
- CPS can take over and discontinue the prosecution at any stage (Prosecution of Offences Act 1985 s.6(2))
- Real risk of adverse costs order against the private prosecutor if the prosecution fails — particularly if it was not brought in good faith
Best For
Fraud, intellectual property theft, data theft, environmental offences, and other cases where the harm is primarily to the private prosecutor and the state has declined to prosecute.
CPS Prosecution
Pros
- Free to victims — the state bears the cost of prosecution
- CPS has specialist units for complex fraud (Serious Fraud Office), sexual offences, organised crime, and terrorism
- CPS handles disclosure obligations under CPIA 1996 — victim is a witness, not a party
- No adverse costs risk to the victim if the prosecution fails
Cons
- Victim does not control proceedings — the CPS decides whether to prosecute and on what charges
- CPS may decline to prosecute if it does not pass the Full Code Test — even where the victim believes the case is strong
- Police investigation quality determines evidential strength — poor investigation may lead to CPS discontinuance
- Delay — complex investigations can take years before charging decisions are made
Best For
The vast majority of criminal cases — particularly where the harm is to the public generally, where specialist CPS units are available, and where the victim does not have the resources to fund a private prosecution.
Key Differences
Our Recommendation
Private prosecution is a powerful but expensive and legally complex tool of last resort — appropriate where the CPS has declined to act and the private prosecutor has strong evidence, specialist legal advice, and the resources to fund proceedings to completion. Before commencing a private prosecution: obtain a written explanation from the CPS or police for their decision not to prosecute; consider whether the Victim's Right to Review scheme allows a review of the CPS decision; take specialist criminal law advice; and ensure full compliance with CPIA 1996 disclosure obligations from the outset. Failure to comply with disclosure obligations is the most common reason private prosecutions fail.