Open consultation

Oversight and regulation of private prosecutors in the criminal justice system consultation

Published 6 March 2025

Applies to England and Wales

Foreword

Private prosecutions brought by individuals or companies play an important role in the justice system. Many private prosecutors bring prosecutions which are in the public interest, with proper regard to process and the rule of law. However, in recent years, private prosecutors have come under increased and justified scrutiny. Some private prosecutors have been found to have acted unlawfully, improperly and well below the standards the public expects. There have been cases where this has resulted in serious injustice.

Perhaps the most egregious example is the Post Office scandal. These private prosecutions have – rightly – been described as one of the worst miscarriages of justice in our country’s legal history. Evidence submitted to the Post Office Horizon IT Inquiry highlighted the failings in the prosecutorial practices that led to hundreds of innocent postmasters being wrongfully convicted. One of the greatest concerns for the purposes of this consultation is how the unacceptable behaviour of the Post Office as a private prosecutor could have gone undetected for so long – and whether better oversight and regulation could have prevented it.

There are other notable examples of private prosecutor failures – such as the thousands of convictions for railway fare evasion offences that were quashed following a ruling in 2024 that the prosecutions were brought unlawfully.

As things stand, there is no coordinated oversight or scrutiny of the steps private prosecutors must take before commencing a prosecution. There are also no quality assurance processes to ensure that private prosecutors are taking proper account of whether a prosecution is in the public interest. The Government is clear that, if we are going to prevent future failures, we must address these issues as a matter of urgency.

The Justice Select Committee’s 2020 report into private prosecutions made several recommendations about how to tackle concerns regarding private prosecutions. Under this new Labour Government, we have reviewed the recommendations and will consult on them without delay.

This consultation seeks views on a range of issues concerning private prosecutions. Firstly, it asks how we can set consistent standards and ensure accountability to improve the behaviour and practice of prosecutors. This could include the introduction of a code of practice, establishing an inspection regime, and putting in place a system of accreditation for private prosecutors.

Secondly, we want to understand how the Single Justice Procedure (SJP) could be improved to ensure cases brought are in the public interest. This could include all SJP prosecutors taking reasonable steps to ascertain a defendant’s situation, including any vulnerabilities, before pursuing a prosecution that might lead to a criminal record. Whilst the SJP is crucial in ensuring cases are heard swiftly in the magistrates’ court, timely processes must not come at the cost of fairness.

Finally, we are seeking input on how we can improve the transparency of private prosecutions to increase public confidence in the criminal justice system. Increasing transparency might include requiring the publication of data by the organisations and agencies that bring private prosecutions.

It is crucial that we learn lessons from recent failures in private prosecutions and ensure that the process is not open to abuse that can result in giving innocent people a criminal record or, at worst, putting them behind bars. This consultation is an important part of that learning. The responses will help us to develop reforms which protect the vital role that private prosecutions play whilst restoring confidence in our justice system.

Sarah Sackman KC MP

Minister of State for Courts and Legal Services

Executive Summary

This consultation paper outlines proposals for regulating and overseeing private prosecutors in England and Wales, including those using the Single Justice Procedure (SJP). These proposals aim to ensure that private prosecutors adhere to consistent standards and can be held accountable for their practices.

The need for reform was highlighted by the Justice Select Committee through their report Private Prosecutions: safeguards in 2020. Public interest in private prosecutions has increased in recent years following the Post Office Horizon scandal and the misuse of the SJP by some train operating companies.

The Government aims to achieve three key objectives through this consultation:

1. Establish consistent standards for private prosecutors and hold them accountable for their practices.
2. Ensure sufficient safeguards to justice in the SJP.
3. Increase confidence in the criminal justice system by improving transparency of private prosecutions.

The proposals in this consultation are based on the JSC’s 2020 report, evidence from the Post Office Horizon IT scandal, and reports from organisations with an interest in the private prosecutorial landscape and Single Justice Procedure.

Through the consultation the Government is considering the introduction of a compulsory code of conduct for private prosecutors to establish consistent standards of practice across private prosecutors. This code would require private prosecutors to conduct prosecutions in a proportionate way and for a clear and valid reason.

The consultation also seeks views on accountability through a system of mandatory inspection for private prosecutors to ensure that they adhere to the required standards. Additionally, a system of accreditation could provide a formally recognised quality standard for private prosecutors, ensuring adherence to the new statutory code or the Code for Crown Prosecutors.

The consultation seeks views on the appropriate consequences for private prosecutors who fail to meet the required standards. This could include restrictions on their rights to bring prosecutions or requiring them to obtain consent from the Attorney General or the Director of Public Prosecutions before initiating a prosecution.

The Government is considering changes to enhance the safeguards within the SJP process and seeks views on these through this consultation. These include making it a requirement for all SJP prosecutors to engage with defendants prior to initiating a prosecution, and/or to review all mitigating circumstances submitted by defendants before the magistrate reviews the case to ensure it is in the public interest to pursue cases.

The consultation also seeks views on the best way for the Government to improve transparency of private prosecutors. The consultation proposes the establishment of a public register of all private prosecutors in England and Wales. This register would detail who brings private prosecutions and the volume of prosecutions they bring. We are also seeking views on whether private prosecutors should be required to publish data on the prosecutions they bring, including the number of prosecutions, offence type breakdowns, and the number of resulting convictions.

We recognise that the private prosecutorial landscape is complex and there are some considerations that are unique to private prosecutors, or to some private prosecutors. Through this consultation we aim to fully understand how proposals affect all types of private prosecutors and how best to ensure consistent standards, accountability, and transparency of all private prosecutors in England and Wales. The Government considers that regulation of private prosecutors is essential to prevent miscarriages of justice and enhance public confidence in the criminal justice system.

This consultation runs for nine weeks and closes on 8 May 2025. We look forward to hearing the views of those with an interest in these changes.

Introduction

This paper sets out proposals for consultation regarding the regulation and oversight of private prosecutors who bring prosecutions in courts in England and Wales, and prosecutors who bring prosecutions via the Single Justice Procedure (SJP). The scope of these proposed reforms is covered in more detail in the chapters below.

Why consult now?

Following the Post Office scandal, there have been widespread public concerns about the regulation and oversight of prosecutions brought by private prosecutors. Unlike the Crown Prosecution Service (CPS), which must abide by prosecuting standards set out in the statutory Code for Crown Prosecutors and is inspected by His Majesty’s Crown Prosecution Inspectorate (HMCPSI), the standards that private prosecutors are required to meet are either not formally agreed or are not clearly set out in a single place. Much of the guidance for prosecutors is applicable to private prosecutors but is advisory rather than binding.

In 2020, the Justice Select Committee (JSC) conducted an inquiry to examine the effectiveness of safeguards in place to regulate private prosecutions and in their report concluded that “the Government should strengthen the safeguards that regulate private prosecutions to ensure that any organisation that conducts a substantial number of prosecutions is subject to the same regulatory standards and expectations of accountability and transparency as public prosecutors”^{[footnote 1]}. This Government is reconsidering these recommendations, some of which are subject to this consultation.

The Post Office Horizon Inquiry has shone a light on the failings in Post Office prosecutorial practices where the Post Office as a private prosecutor investigated and prosecuted postmasters using flawed evidence from the Horizon IT computer system, leading to criminal convictions of innocent people. Following the appeal courts overturning the convictions of over 100 former postmasters, the Post Office (Horizon System) Offences Act 2024 quashed the convictions of individuals who were wrongfully convicted in the Horizon Scandal. However, there has been growing concern about how the behaviour of the Post Office as prosecutor went undiscovered for so long, and the potential for similar organisations to bring private prosecutions without being accredited, regulated, or properly scrutinised.

A further concern came to the public’s attention when, in 2024, it was discovered that certain train operating companies had used the SJP to prosecute a particular offence which train operating companies were not permitted to prosecute in the SJP and as a result approximately 60,000 cases have been declared void. As a result of this incorrect use of the SJP, and other related concerns, the former Transport Secretary asked the Office for Rail and Road (ORR) to conduct an independent review of train operators’ revenue protection enforcement practices, including the use of prosecutions. The ORR will report on its findings in May 2025^{[footnote 2]}. The Ministry of Justice will work closely with the Department for Transport to consider the ORR’s report where it relates to train operators bringing criminal prosecutions, many of which are instigated using the SJP.

Despite these areas of concern, there are many organisations and agencies that appear to be bringing prosecutions properly and responsibly and exercising good prosecutorial practice. The right within our criminal justice system to bring a prosecution where criminal justice agencies are not doing so is a key safeguard to accessing justice, and it is important to note that many organisations that prosecute do so acting in the public interest with the utmost regard to a just and fair legal system.

However, given the concerns and challenges outlined above, and the significant impact on individuals resulting from a criminal prosecution, the Government believes that there is a need to consult on proposals that would regulate private prosecutors and provide oversight of them, to provide greater assurance that appropriate standards are being met in all criminal proceedings.

Aims of the consultation

The Government aims to reform the private prosecution landscape in three key ways, by:

1. Setting consistent standards for private prosecutors and making prosecutors accountable for their practices and the prosecutions they bring;
2. Ensuring there are sufficient safeguards to justice in the single justice procedure;
3. Increasing confidence in the criminal justice system by improving transparency of private prosecutions, to allow any areas of concern to be quickly identified and addressed.

Prosecutorial Landscape

As any individual or organisation can bring a private prosecution, the private prosecutorial landscape is broad.

The number of prosecutions brought, and the offences prosecuted, by separate agencies varies significantly. Some organisations bring thousands of prosecutions for low-level offences annually whilst others instigate prosecutions in much smaller numbers but for much more serious criminal offences.

Furthermore, there is no agreed terminology for the different types of prosecutor who can bring cases to the criminal courts in England and Wales.

Definitions

For the purposes of this consultation, we use the following definitions:

Criminal justice agencies: organisations who have the primary purpose of investigating or prosecuting criminal offences, on behalf of the Crown. Within this we include Crown Prosecution Service (CPS), police forces (including the British Transport Police), the Serious Fraud Office (SFO) and the National Crime Agency (NCA). These organisations are subject to statutory inspection by either His Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) or His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) and apply the Code for Crown Prosecutors in bringing prosecutions.

Private prosecutors: all other bodies who bring criminal prosecutions other than those categorised above. This covers organisations who bring prosecutions in the following ways:

• Using common law powers which are preserved under section 6(1) of the Prosecution of Offences Act 1985 (the power to bring private prosecutions);
• As “relevant prosecutors” authorised to bring prosecutions (either in general or for specific offences) through the Single Justice Procedure, in a 2016 Order made under the Criminal Justice Act 2003; or
• As authorised for specific offences under specific legislation, such as the Office of Gas and Electricity Markets (Ofgem), who have powers to prosecute certain offences under the Gas Act 1986 the Electricity Act 1989 and the Electricity and Gas (Market Integrity and Transparency) (Criminal Sanctions) Regulations 2015.

These prosecutors may be private organisations or public bodies – but for clarity we will refer to this group of prosecutors as ‘private prosecutors’ throughout this document. The proposals in Chapter one (Consistency of Standards and Accountability) and Chapter three (Increasing Transparency) of this consultation relate to this group of prosecutors.

Specified prosecutors from both categories may use the Single Justice Procedure to bring prosecutions for certain offences. The proposals contained in Chapter two (Improving Safeguards to Justice in the Single Justice Procedure) apply to all prosecutors who use the SJP.

Not in scope of the consultation

The Service Prosecuting Authority, who bring prosecutions in the Military Court Service, are not in scope of this consultation.

While most prosecutions by private prosecutors are brought by companies or organisations, individuals can also bring prosecutions. For example, a victim of a crime can bring a prosecution against the perpetrator if the police or CPS decide not to charge them.

We consider that the right of victims of crime to commence criminal proceedings provides an essential route to justice and do not seek to curtail the ability for an individual to bring a prosecution on their own behalf in any way. Individuals who bring a prosecution on their own behalf are therefore out of scope of the proposals in this consultation.

Finally, this consultation is focused on measures to reform the private prosecutorial landscape. While we recognise the significant crossover between investigations and criminal prosecutions and the fact that some organisations undertake both functions, standards for those investigating criminal offences are not the subject of this consultation.

Private prosecutions background

The criminal justice system in England and Wales allows any individual or organisation to institute criminal proceedings through a prosecution by first applying to the magistrates’ court for a summons to commence the prosecution.

In addition, certain private prosecutors may bring prosecutions for certain specified minor offences using the SJP instead of having to apply to the magistrates’ court for a summons. The CPS and police can also use the SJP to commence a prosecution for the same specified offences.

Many organisations that bring prosecutions are public agencies (such as the Driver and Vehicle Licensing Agency (DVLA)), and some have a specific legislative authority to bring prosecutions for certain types of offences, meaning they do not first have to apply to the magistrates’ court for a summons, for example, Local Authorities whose power to prosecute comes from the Local Government Act 1972.

Many companies bring criminal prosecutions, for example some train operating companies prosecute people for fare evasion offences and some media companies prosecute people for offences like copyright infringement. Some charities bring prosecutions for offences such as theft of their fundraising monies or for offences specific to their cause, such as the RSPCA prosecuting for animal welfare offences. There are also some companies, such as TM Eye Ltd, that bring primarily trademark prosecutions on behalf of individuals or organisations for a fee.

Data

There is very limited published data available on private prosecutions.

The following data is a count of defendants disposed of in the magistrates’ court in 2023 by prosecutor type. It is a subset of published Accredited Official Statistics series Criminal Court Statistics Quarterly (CCSQ)^{[footnote 3]}. The data is unpublished management information and has not been quality assured to the same standards as the wider CCSQ release but is provided here as a first release of this data as it is important to the background of the consultation.

Prosecutor type	2023 (count of defendants dealt with in the magistrates’ court[footnote 4]	% of total defendants dealt with in the magistrates’ court[footnote 5]
Police, Crown Prosecution Service & British Transport Police	832,865	66%
Private Prosecutors	325,256	26%
Other & Not Assessed	107,873	9%

As outlined above, in 2023, 26% of the total defendants dealt with in the magistrates’ court were prosecuted by private prosecutors. This includes cases concluded via the SJP, cases heard in court and cases that were later committed to the Crown Court. Of the non-SJP defendants whose private prosecutions were disposed of in the magistrates’ court, 3% were then committed to the Crown Court. However, it is not known whether these cases remained with a private prosecutor or were taken over by the CPS, and further data on private prosecutions in the Crown Court is not available.

Chapter 1 – Consistency of Standards and Accountability

The current position and the need for reform

All prosecutors must comply with the Criminal Procedure Rules 2020^{[footnote 6]} and professionals acting as prosecutors are bound by the codes of conduct set by their professional regulatory bodies, such as the Solicitors Regulation Authority, at all times. However, there is currently a lack of common standards which private prosecutors need to adhere to when deciding whether to bring a prosecution, and in carrying out that prosecution. Unlike the Code for Crown Prosecutors, which is statutory guidance that the CPS must follow and other criminal justice agencies adhere to, there is no binding code that private prosecutors need to follow when bringing a prosecution. Equally, there is no required scrutiny (such as inspection) of how these prosecutors conduct their prosecutions, and no clear route for accountability if acceptable standards are not met.

This lack of consistency and accountability in the standards required of prosecutors undermines public confidence in the justice system and, as has been demonstrated by the Horizon scandal, risks the criminal justice system being used to pursue unfair and wrongful convictions. We are clear that this needs to change.

Code for Private Prosecutors

The Government recognises that there are some examples of good practice amongst private prosecutors. We are aware that some private prosecutors choose to follow the Code for Crown Prosecutors^{[footnote 7]} when bringing their prosecutions. Additionally, the Private Prosecutors’ Association (PPA), a membership organisation formed in 2017 for private prosecutors and academics in this field, devised a voluntary Code for Private Prosecutors^{[footnote 8]} which outlines that private prosecutors should seek, where possible, to comply with the same codes of practice and guidance as apply to criminal justice agencies (e.g. the Code for Crown Prosecutors). The PPA also issues guidance on issues which they consider unique to private prosecutors. We welcome further examples of good practice, and how standards are maintained, in response to the questions in this consultation.

However, whilst the Code for Private Prosecutors is a detailed voluntary set of guidelines, it is not mandatory and not all private prosecutors adhere to it.

Though the Government welcomes the PPA’s development of the Code for Private Prosecutors and its aims to provide a benchmark for best practice, we also recognise that the PPA performs no regulatory or quality assurance function and note the limitations of the Code for Private Prosecutors as a non-statutory code.

The Justice Select Committee (JSC) report into private prosecutions in 2020 recommended that “the Government should consider enacting a binding code of standards, enforced by a regulator, that applies to all private prosecutors and investigators” to “ensure that any organisation that conducts a substantial number of prosecutions is subject to the same regulatory standards and expectations of accountability and transparency as public prosecutors.”^{[footnote 9]}

The evidential and public interest tests

The Code for Crown Prosecutors requires the CPS and SFO to consider the two elements of the ‘Full Code Test’^{[footnote 10]}before bringing a prosecution and keep these under review throughout the prosecution.

The first element of the Full Code Test is a consideration as to whether there is sufficient evidence against the defendant to provide a reasonable prospect of conviction. This must be done based on an objective assessment of the evidence, including consideration of the defence position and information or evidence the suspect has provided in explanation or upon which they might rely (‘evidential stage’). The second element of the Full Code Test is a consideration as to whether it is in the public interest to prosecute. This includes consideration of the seriousness of the alleged offence, the suspect’s culpability, circumstances and level of harm caused or impact on the victim or community, and whether prosecution is proportionate in the circumstances (‘public interest stage’).

There is currently no legal requirement for private prosecutors to satisfy these tests. However, the Private Prosecutors’ Association’s Code for Private Prosecutors advises that it is “best practice for a private prosecutor and those who advise them to apply the Full Code Test”^{[footnote 11]}.

The Director of Public Prosecutions (DPP) has the power to take over, and the power to stop, a private prosecution if – upon review – they consider the prosecution does not meet the evidential or public interest test. However, the CPS is not currently notified of a private prosecution commencing and is only made aware of a private prosecution if it is referred to them – usually by a defendant. No one is required to refer a private prosecution to the CPS to review, meaning that in practice very few private prosecutions are brought to the attention of the CPS for them to review the evidential or public interest tests. In 2023–24, the CPS took over and discontinued 20 out of the 32 cases referred to it, they did not take over and continue any^{[footnote 12]}.

Separation of functions

A general principle of the Code for Crown Prosecutors is that “the independence of the prosecutor is central to the criminal justice system of a democratic society. Prosecutors are independent from persons or agencies that are not part of the prosecution decision-making process. CPS prosecutors are also independent from the police and other investigators. Prosecutors must be free to carry out their professional duties without political interference and must not be affected by improper or undue pressure or influence from any source.”^{[footnote 13]}

Whilst the CPS can advise the police on reasonable lines of inquiry and overall investigation strategy, it is the police who are responsible for the thorough and proper investigation of any offences.

When deciding whether to prosecute, a case reviewing lawyer within the CPS relies on evidence gathered by the police and bases their decision whether to prosecute on the evidential and public interest tests. A separate lawyer within the CPS then leads on the prosecution.

This separation of functions – investigation, decision whether to prosecute, and prosecution – ensures that prosecutions brought by the CPS are carried out independently from investigators and that the decision on whether to prosecute is reviewed independently of those who investigated the alleged offence and from the prosecution itself.

Many private prosecutors bring prosecutions where they are also the victim or most directly impacted by the alleged offence and conduct the investigation into the alleged offence. We recognise that some private prosecutors conduct their investigation and prosecution functions separately – the PPA has this as a requirement in their Code for Private Prosecutors – but where this separation is not observed, there are risks that the prosecutor brings a case without meeting the evidential and/or public interest test, and instead because it is in the organisation’s interests to do so.

Private prosecutors can recover losses through compensation imposed by the Court as part of a sentence upon conviction, and/or confiscation proceedings ordered by the Court. Many private prosecutors can recover the costs of the prosecution from central funds. There may therefore be an additional motivation for private prosecutors to commence a prosecution, which poses a risk that the public interest test is not always observed.

We recognise that for many private prosecutors it is not feasible to outsource the investigation or prosecutorial functions. However, it could still be possible to ensure there is sufficient independence of functions. For example, the SFO, as a criminal justice agency prosecutor, carry out their own investigations and lead the prosecution of cases of serious or complex fraud, bribery or corruption. The SFO has multi-disciplinary case teams comprising of lawyers, investigators, forensic accountants and other experts. These teams both investigate and prosecute cases in a joint approach known as the ‘Roskill’ model.^{[footnote 14]}

Scrutinising adherence to required standards

There is currently no mandatory inspection of private prosecutors. The CPS and the SFO’s adherence to the statutory standards in the Code for Crown Prosecutors is overseen by an inspectorate, His Majesty’s Crown Prosecution Service Inspectorate (HMCPSI). HMCPSI is dedicated to driving improvements and public confidence in the prosecution process. Inspections are carried out formally but with a collaborative approach, HMCPSI inspectors take time to understand the prosecutor’s operations, working as a secondee for the duration of the inspection. HMCPSI inspection reports are published so should an inspection find failings the Government can review what action to take. The Government are held to account by Parliament over the prosecutor’s failings and action taken as a result.

Private prosecutors, however, are not subject to the same compulsory scrutiny and there is no body that can mandate an inspection of a private prosecutor. HMCPSI can inspect organisations outside the CPS/SFO, however, these inspections are by invitation from the organisation itself. HMCPSI does not have the power to instigate an inspection without the consent and cooperation of the organisation. Likewise, there is no binding code against which they can measure the organisation’s practices. HMCPSI currently has capacity to carry out one inspection of an external organisation each year – though there are no clear repercussions if an inspection finds failings by the private prosecutor.

In summary, without a clear and compulsory code, and without an inspecting body with the power to decide who to inspect and when, or a system of accreditation, there is significant variation in standards between private prosecutors – some of whom are voluntary subscribers to the Private Prosecutor’s Code or choose to adhere to the Code for Crown Prosecutors – as well as between criminal justice agencies and private prosecutors. Currently, there is no safeguard available in the event of poor practice by a private prosecutor in individual cases beyond referral to the Director of Public Prosecutions, which seems only to be used rarely given the small number of referrals compared to the number of total prosecutions.

What we want to achieve

The Government believes that there is a clear need for reform to improve the consistency of standards and accountability of private prosecutors. We propose that this is delivered through four key mechanisms: a binding code of standards for private prosecutors, a system of inspection for some private prosecutors, a system of accreditation, and clear consequences and sanctions for those who fail to uphold the required standards.

A binding code

We believe that the public has a right to know that all criminal prosecutions brought before the courts have been assessed as meeting the evidential test and are in the wider public interest, and that the standards those prosecutions must meet are consistent regardless of who instigates them.

We have reviewed the JSC’s recommendations from 2020, particularly in light of further information relating to the Post Office Horizon scandal, and suggestions that some private prosecutors have pursued prosecutions without having fully considered whether it is in the public interest to do so.

This consultation seeks views on the introduction of a compulsory code of conduct, requiring that prosecutions are conducted in a proportionate way and for a clear and valid reason. A code of conduct would act as a measure to ensure that private prosecutors are bound by a minimum level of standards in bringing their prosecutions. We are consulting on what specifically should be contained within this Code, and to which private prosecutors it should apply (for example, whether it should only be applicable to prosecutors of a certain size, and whether it should apply to public bodies and private organisations equally).

Whilst most requirements placed on criminal justice agency prosecutors can be made applicable to private prosecutors, there are some considerations which are unique to organisations that bring private prosecutions. For example, most private prosecutors have both their investigation and prosecution functions in-house. We recognise that there are therefore additional challenges in maintaining a separation between these functions within an organisation that brings private prosecutions.

Another feature of organisations that bring private prosecutions which distinguishes them from criminal justice agency prosecutors is that, for most organisations, investigating and prosecuting alleged criminal offences is not their primary function. Many of these organisations provide public services, produce and/or sell products or services, campaign for charitable causes, or operate on behalf of Government departments – unlike the CPS and SFO, investigating and prosecuting offences is not their sole or main purpose.

This consultation asks respondents for comment and insight into considerations which are unique to private prosecutors, and whether there are any further regulations or requirements that should be placed upon private prosecutors that are not relevant to criminal justice agency prosecutors. For example, a requirement could be for the corporate or governance board of an organisation to receive reports of private prosecutions brought by the organisation as a private prosecutor, given that this is not their primary function and it may not be internally reported on otherwise.

Whilst a binding code of practice would set expectations and requirements of private prosecutors, the Government believes that an effective mechanism of enforcement and scrutiny is also required to prevent miscarriages of justice and improve public confidence in the justice system. We welcome views on the best way to achieve this.

Inspection

Inspection is a crucial mechanism for both the government and the public to understand how required standards are being met. However, we also recognise that it is resource intensive and can potentially place a significant burden on organisations subject to inspection. We are keen to hear views on how a system of inspection could be used in a proportionate way to help ensure that standards are being upheld and relevant bodies being held to account for their actions. Specifically, we are seeking views on which private prosecutors a system of mandatory inspection could or should apply to.

Accreditation

Accreditation could provide a formally recognised quality standard for all private prosecutors, and a way of ensuring adherence to either a new statutory code for private prosecutors or the Code for Crown Prosecutors. The introduction of a system of accreditation is supported by both Criminal Law Reform Now Network (CLRNN) and the JSC report, and the JSC see inspections as ‘part of a system of accreditation’.^{[footnote 15]}

We welcome views on how a system of accreditation could help to increase standards and accountability of private prosecutors, and in particular how it should be applied – whether, for example, it should be a requirement placed on any organisation wishing to bring a private prosecution, or whether the use of an accredited legal representative should be compulsory if the reimbursement of costs from public funds is to be sought.

Sanctions and consequences

We are clear that a mandatory code of standards, and any associated system of accreditation or inspection, will only be fully effective if there are consequences to a private prosecutor being found not to have met the required standards.

The JSC report suggests “if an organisation is found to be misusing the power to bring private prosecutions, then the body responsible for inspecting all prosecutors and enforcing the code, be it the CPS, HMCPSI or another public body, should be able to remove the right of an organisation to bring a prosecution, or to require them to obtain consent from the Attorney General or the DPP before they can initiate a prosecution”‘^{[footnote 16]}. Furthermore, CLRNN suggest that if any persons or bodies which undertake prosecutorial work are not accredited (as they recommend) “a magistrate should only issue a summons to start the proceedings in exceptional circumstances.”^{[footnote 17]}

This consultation seeks views on what consequences should fall from failing to meet the required standards, for example whether restrictions should be introduced to an organisation’s rights to bring prosecutions.

Chapter 2 – Improving Safeguards to Justice in the Single Justice Procedure

The current position and the need for reform

In addition to criminal justice agency prosecutors, some private prosecutors are authorised to use the Single Justice Procedure (SJP) to pursue cases for certain summary only non‑imprisonable offences.

Introduced in 2015, the SJP is used to deal with minor offences that do not attract a prison sentence and is an important part of ensuring cases can be heard swiftly. These cases are exclusively managed within the magistrates’ court and typically result in the defendant being sentenced to pay a fine.

Under the SJP, a single magistrate, supported by a legal adviser, reviews cases based on written statements, evidence from the prosecutor, and a statement in mitigation from the defendant (if submitted) and makes decisions about convictions and sanctions out of “open court”^{[footnote 18]}. Unlike other cases which are heard in the magistrates’ court, there is no panel of two or three magistrates, and prosecutors, defendants and the public, including journalists, are not present.

Around 65% of all cases in the magistrates’ courts are dealt with through the SJP. Approximately 63,000 cases per month are resolved when defendants plead guilty by post or online, or where they do not respond to the Single Justice Procedure Notice^{[footnote 19]}. Prosecutors authorised to use the SJP are specified in legislation and include the police and CPS as well as several private prosecutors including Local Authorities, train operators, TV Licensing and the Driver and Vehicle Licensing Agency (DVLA).^{[footnote 20]}

There are several safeguards built into the SJP process to protect a defendant’s right to a fair trial. These include defendants being able to elect for a court hearing, provide mitigation alongside a guilty plea, and, if they were unaware of proceedings, making a statutory declaration which revokes all proceedings. They can also appeal to the Crown Court where the case will be reheard, without the need for permission to appeal.

Media organisations receive lists of all pending SJP cases, the outcomes of all cases, and have the right to receive the prosecution statement and defendant’s mitigation if provided.

However, there has been mounting public concern about the way that mitigating circumstances are dealt with and calls for greater transparency.

Currently, if a defendant provides mitigation alongside a guilty plea, the magistrate will consider this when deciding the case. The magistrate then has the option to refer the case back to the prosecutor, refer the case to open court, or dispose of the case through an absolute (or conditional) discharge if they so choose. An absolute discharge means that the defendant does not receive a fine and that their conviction is automatically spent, providing a swifter resolution for them.

Under the current SJP process, there have been instances where people have been prosecuted where the mitigation they put forward demonstrates that it was not in the public interest for them to have been prosecuted. There is currently no opportunity for prosecutors to review any mitigation prior to a magistrate deciding the case.

What we want to achieve

The SJP is an important measure in ensuring cases can be heard swiftly within the magistrates’ courts. However, it is important that we ensure fairness in cases prosecuted through SJP and that there are sufficient safeguards for defendants, particularly those who are vulnerable.

Following the concerns raised by the public and media in relation to SJP, as well as reviewing the wider private prosecution landscape, the Government is considering whether changes should be made to enhance the safeguards within the SJP process and assure appropriate use of the SJP by all prosecutors. This is of particular importance given that around 35% of defendants dealt with through the SJP are prosecuted by private prosecutors.^{[footnote 21]}

In the previous section we set out proposals to reform the way that private prosecutors operate, including when using SJP, and in this section we are consulting on possible system changes which put in place additional safeguards, and these would apply to all SJP users, including criminal justice agency prosecutors, such as the police.

The Government wants to explore, through this consultation, whether there should be improvements made to the SJP to change the way in which all prosecutors who can prosecute via the SJP bring prosecutions through this procedure and whether additional requirements should be imposed on those prosecutors who use SJP.

We are particularly interested in exploring changes to better assure that SJP cases brought are in the public interest, including making it a requirement for all SJP prosecutors, whether CPS, police, or private prosecutors, to have access to and to review all mitigating circumstances that are submitted by the defendant.

The Government is also currently working to redesign the notice that is sent to defendants to inform them of their prosecution (SJP Notice), to make it clearer and easier for defendants to understand both the SJP process and their rights relating to it.

Chapter 3 – Improving Transparency

The current position and the need for reform

Evidence given to the Post Office Horizon IT Inquiry into the Horizon scandal indicates that those being prosecuted by the Post Office were told that others were not having the same issues that they were when they raised concerns about the Horizon system. Many of those who were prosecuted were also unaware that others had also been prosecuted for offences following the installation of the Horizon system.

It is possible that had there been greater transparency over the prosecutorial activities of the Post Office and publicly available data showing the rising number of prosecutions, there would have been a greater opportunity for scrutiny by the victims of the scandal, the parliamentarians and legal advisers representing them, and the public more widely. This could have resulted in these miscarriages of justice being identified more quickly, and even some wrongful prosecutions being prevented.

Whilst HMCTS do own a register which details applications to the magistrates for a summons to commence a private prosecution, it was designed as an internal document for use amongst operational staff only. This internal register does not currently meet the requirements for published statistics and does not include data on private prosecutions initiated through the Single Justice Procedure, so it does not capture the full extent of private prosecutions or further data on those prosecutions, including anonymised defendant data or outcomes.

In addition, there is no public central database on the number of prosecutions brought by private prosecutors, and currently there is no duty on private prosecutors to publish data on the prosecutions that they bring. We are aware that some prosecutors already publish their data, but the type of data and regularity of publications varies.

The result is a disparate picture on who is bringing private prosecutions in England and Wales, how many private prosecutions are being brought, what type of private prosecutions are being brought, and how many private prosecutions lead to a conviction.

What we want to achieve

Transparency is a crucial aspect of accountability. Organisations who undertake criminal prosecutions should have clear oversight and understanding of the prosecutions that they bring and should be open with the public about them, in particular the volume of prosecutions they are bringing. Both the Government and the public rightly want to know who is using the tools of the state to prosecute.

The JSC’s 2020 report recommended that His Majesty’s Courts and Tribunals Service (HMCTS) should “establish a central register of all private prosecutions in England and Wales.”^{[footnote 22]} We believe that a public register could provide some transparency by detailing who brings private prosecutions in England and Wales and are seeking views on this proposal.

An increase in available data could help to show emerging trends and would in turn enable greater scrutiny of private prosecutors. It would also provide greater oversight of the criminal justice landscape as a whole – for example, an increase in private prosecutions may occur because of resource or capacity issues in criminal justice agencies. More available data allows Government and the public to identify trends and explore the reasons for them, allowing concerns to be identified and corrective action to be taken sooner where necessary. We are therefore seeking views on what data private prosecutors should be required to publish, and whether this requirement should apply to all private prosecutors.

Another crucial aspect of transparency is how private prosecutors review and assess their own performance. It may be beneficial for private prosecutors to not only report on quantitative data but provide qualitative assessment of their prosecutions. This may include consideration of the prosecutor’s compliance with any Code of Practice, an audit or dip sample of their prosecutions, or lessons learned and actions for improvement. We are seeking views on whether this should be required and whether this information should be publicly available.

Equalities Analysis

The Equality Statement accompanying this consultation document considers the likely equality impacts of the proposals set out in this consultation on prosecutors and those prosecuted. For these proposals we have indicated, based on the latest available evidence, what the likely impacts on equality are. Our analysis considered, where possible, the impacts of our proposed changes on people with protected characteristics under the Equalities Act 2010.

The specific equalities questions below are designed to invite feedback on each of the proposals in this consultation and their impacts. Following the results of the consultation, we will review the likely impacts and update this Equality Statement alongside the Government response to the consultation where necessary.

Impact Assessment and Welsh Language

Impact Assessment

An assessment of economic impacts generated by the proposals covered in this consultation will be undertaken alongside the post-consultation response as the purpose of the consultation is to assist the Government in determining which policy options to progress to reform the private prosecutorial system. Any assessment will be shared with the Regulatory Policy Committee for scrutiny if the necessary thresholds are met.

Welsh Language

A Welsh language version of this consultation paper is available at https://www.gov.uk/government/consultations/oversight-and-regulation-of-private-prosecutors-in-the-criminal-justice-system.

Questionnaire

We would welcome responses to the following questions set out in this consultation paper.

Thank you for participating in this consultation exercise.

About you

1.Are you responding on behalf of an organisation that brings private prosecutions?

• Yes
• No

2.If you are responding on behalf of an organisation that brings private prosecutions, how many prosecutions did your organisation bring in the last financial year (2023–2024)? Please select:

• Less than 100
• 100-500
• 501-1,000
• 1,001-5,000
• 5,001-10,000
• More than 10,000
• Don’t know
• N/A

3.If you are responding on behalf of an organisation that brings private prosecutions, is your organisation authorised to commence prosecutions using the Single Justice Procedure (SJP)?

• Yes
• No
• Don’t know
• N/A

4.If you are responding on behalf of an organisation that brings private prosecutions, does your organisation commence prosecutions outside the Single Justice Procedure?

• Yes
• No
• Don’t know
• N/A

Chapter 1: Consistency of Standards and Accountability

Code of Practice

5.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice?

• Yes
• No
• Don’t know

Please provide reasons for your answer.

6.If you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice, do you think this code should apply to:

• All private prosecutors bringing prosecutions
• Only those private prosecutors who bring a certain number of prosecutions (please specify what you think this number should be)
• Only those private prosecutors who are defined using a different measure, other than the number of prosecutions they bring (please specify what you think this should be)
• Don’t know
• N/A

7.If you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be bound by a mandatory code of practice, please provide your opinions on requirements that could be included in the code (select all that apply):

• A requirement for the separation of functions between investigators and prosecutors
• A requirement for the separation of functions between those who decide whether to commence a prosecution, and those who carry out the prosecution
• A requirement to consider whether there is sufficient evidence to secure a conviction
• A requirement to review the public interest test before commencing the prosecution, and keep it under review throughout proceedings
• Please provide any other requirements you think should be included in the code, including any considerations exclusive to private prosecutions such as a requirement for companies to report all prosecutorial activity to its Board of Directors

8.If you are answering this consultation on behalf of an organisation that brings private prosecutions: do you currently follow a Code (for example, the Code for Crown Prosecutors) when bringing prosecutions?

• Yes, please state which Code you use
• No
• Don’t know

9.If you are answering this consultation on behalf of an organisation that brings private prosecutions: If your organisation does follow a code, how much time/resource does this take? Please specify whether your estimates are based per prosecution or per annum.

10.If you are answering this consultation on behalf of an organisation that brings private prosecutions: If your organisation does not follow a code, how much additional time/resource do you anticipate it would take to comply with a code that mirrors the Code for Crown Prosecutors? Please specify whether your estimates are based per prosecution or per annum.

11.Please provide any examples of best practice ensuring consistency of standards in private prosecutions (either used by you or your organisation, or that you know of).

12.If you have any other thoughts about a code for private prosecutors which have not been captured in the questions above, please provide these.

Inspectorate

13.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be subject to inspections from an inspectorate?

• Yes
• No
• Don’t know

14.If you agree that some or all private prosecutions should be subject to inspections from an inspectorate, should this requirement apply to (please select one):

• All organisations bringing private prosecutions
• Only those bringing a certain number of private prosecutions (please specify what you think this number should be)
• Only those private prosecutors who are defined using a different measure, other than the number of prosecutions they bring (please specify what you think this should be)
• Don’t know
• N/A

15.If you agree that private prosecutors should be subject to inspections from an inspectorate, what would be a suitable consequence if a prosecutor fails an inspection? - Requirement to declare to the magistrates’ court any previous negative reports/failure to meet the required standards when applying for summons to commence a prosecution.

• Removal of right to use SJP if applicable.
• Removal of status as ‘relevant prosecutor’ if applicable, meaning a requirement to apply to the magistrates’ court for a summons to commence future prosecutions.
• Other, please state
• Don’t know
• N/A

16.If you have any other thoughts about an inspectorate for private prosecutors which have not been captured in the questions above, please provide these.

Accreditation

17.Do you think there should be a system of accreditation for private prosecutors? If so, please specify whether you think this should be mandatory or voluntary.

• Yes, mandatory
• Yes, voluntary
• No
• Don’t know

18.If you think there should be a voluntary system of accreditation, please provide detail of what the incentive should be for acquiring accreditation or the consequences for not being accredited.

19.If you think there should be a system of accreditation for private prosecutors, do you think this should be required at an organisational level or should it be a personal professional requirement for all individuals involved in bringing a prosecution?

• Organisational level
• Personal requirement
• Don’t know
• N/A

20.If you have any other thoughts about accreditation for private prosecutors which have not been captured in the questions above, please provide these.

Chapter 2: Improving Safeguards to Justice in the Single Justice Procedure

21.Do you think that Single Justice Procedure prosecutors should be required to take steps to engage with the defendant before commencing a prosecution, to understand their personal situation (mitigating circumstances) and assess whether the prosecution is in the public interest?

• Yes
• No
• Don’t know

22.Do you think the prosecutor should be able to view the mitigating circumstances submitted to the court by a defendant before the case is reviewed by a magistrate?

• Yes
• No
• Don’t know

23.If you agree that the prosecutor should be able to review the mitigating circumstances before the magistrate reviews the case, do you think there should be a statutory requirement for them to review this in all cases, and conduct a further assessment of whether it is in the public interest to continue the prosecution, then confirm to the court that they have done this?

• Yes
• No
• Don’t know
• N/A

24.Should there be a requirement for prosecutors to allow a certain period of time for people to respond to an initial notification in order to provide details of any their circumstances prior to issuing an SJP Notice?

• Yes – please provide the period of time you think appropriate
• No
• Don’t know

25.Should there be a requirement to send a certain number of written notifications before issuing a Single Justice Procedure Notice?

• Yes – please specify how many written notifications you think appropriate
• No
• Don’t know
• N/A

26.This question is for respondents responding to this consultation on behalf of an organisation that brings prosecutions through the Single Justice Procedure: do you currently engage with the defendant and request any information on their circumstances prior to commencing a prosecution, including assessing their vulnerability?

• Yes – please provide details about the time and resource this involves
• No
• Don’t know

27.If you have any other thoughts about the SJP which have not been captured in the questions above, please provide these.

Chapter 3: Improving Transparency

28.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to register with HMCTS prior to bringing a prosecution?

• Yes
• No
• Don’t know

29.If you agree that some or all private prosecutions should be required to register with HMCTS prior to bringing a prosecution, should this requirement apply to (please select one):

• All organisations bringing private prosecutions
• Only those bringing a certain number of private prosecutions (please specify what you think this number should be)
• Only those private prosecutors who are defined using a different measure, other than the number of prosecutions they bring (please specify what you think this should be)
• N/A

30.Do you agree that some or all private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to publish their own data on the prosecutions they bring?

• Yes
• No
• Don’t know

31.If you think some or all private prosecutors should publish data, what data should they be required to publish?

• Number of prosecutions brought per year
• Offence types of prosecutions brought
• Resulting number of convictions
• Number of defendants who pleaded guilty
• Equalities data
• Other, please state
• Don’t know
• N/A

32.Do you agree that private prosecutors (apart from individuals bringing private prosecutions on their own behalf) should be required to assess their performance and/or regularly audit their own prosecutions?

• Yes
• No
• Don’t know

33.If you agree that private prosecutors should be required to assess their performance and/or regularly audit their own prosecutions, do you think this information should be published?

• Yes
• No
• Don’t know
• N/A

34.If answering on behalf of an organisation that brings private prosecutions: Does your organisation collect any data regarding the number of private prosecutions brought per annum? If so, please detail if your organisation publishes this data, as well as the time and resource costs of collecting (and if applicable publishing) this data. If your organisation does not collect or publish data, if possible please estimate how much time and resource collecting and publishing this data would require.

• Yes
• No
• Don’t know
• N/A

35.If you have any other thoughts about transparency in private prosecutions which have not been captured in the questions above, please provide these.

Equalities Analysis Questions

Consistency of standards and accountability

36.From your experience are there any groups with protected characteristics who may be particularly affected, either positively or negatively, by the proposals in Chapter 1 of this paper? Please include which groups/individuals and explain your reasons. We would welcome examples, case studies, research or other types of evidence that support your views.

37.What do you consider to be the equalities impacts of each of the proposals in Chapter 1 on individuals with protected characteristics? Are there any mitigations the government should consider? Please provide reasons and evidence where possible.

Improving safeguards to justice in the Single Justice Procedure

38.From your experience are there any groups with protected characteristics who may be particularly affected, either positively or negatively, by the proposals in Chapter 2 of this paper? Please include which groups/individuals and explain your reasons. We would welcome examples, case studies, research or other types of evidence that support your views.

39.What do you consider to be the equalities impacts of each of the proposals in Chapter 2 on individuals with protected characteristics? Are there any mitigations the government should consider? Please provide reasons and evidence where possible.

Improving transparency

40.From your experience are there any groups with protected characteristics who may be particularly affected, either positively or negatively, by the proposals in Chapter 3 of this paper? Please include which groups/individuals and explain your reasons. We would welcome examples, case studies, research or other types of evidence that support your views.

41.What do you consider to be the equalities impacts of each of the proposals in Chapter 3 on individuals with protected characteristics? Are there any mitigations the government should consider? Please provide reasons and evidence where possible.

Answer these questions online

Contact details/How to respond

Please send your response by 8 May 2025 to:

Criminal Justice and Courts Directorate
Ministry of Justice
102 Petty France
London SW1H 9AJ

Email: PrivateProsecutionConsultation@justice.gov.uk

Complaints or comments

If you have any complaints or comments about the consultation process you should contact the Ministry of Justice at the above address.

Extra copies

Further paper copies of this consultation can be obtained from this address and it is also available on-line at https://consult.justice.gov.uk/.

Alternative format versions of this publication can be requested from PrivateProsecutionConsultation@justice.gov.uk or:

Criminal Justice and Courts Directorate
Ministry of Justice
102 Petty France
London SW1H 9AJ

Publication of response

A paper summarising the responses to this consultation will be published in due course, which as far as possible should be within three months of the closing date of the consultation. The response paper will be available on-line at https://consult.justice.gov.uk/.

Representative groups

Representative groups are asked to give a summary of the people and organisations they represent when they respond.

Confidentiality

Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 2018 (DPA), the General Data Protection Regulation (UK GDPR) and the Environmental Information Regulations 2004).

If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Ministry.

The Ministry will process your personal data in accordance with the DPA and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.

Consultation principles

The principles that Government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation are set out in the Cabinet Office Consultation Principles 2018 that can be found here:

[https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/691383/Consultation_Principles__1.pdf](https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/691383/Consultation_Principles__1.pdf)

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1.  Private Prosecutions: safeguards, House of Commons Justice Committee, 2 October 2020 (Private prosecutions: safeguards - Justice Committee - House of Commons), para. 60 ↩

2.  Call for evidence: Review of train operators’ revenue protection policies, Office of Rail and Road https://www.orr.gov.uk/search-consultations/call-evidence-review-train-operators-revenue-protection-policies ↩

3.  https://www.gov.uk/government/collections/criminal-court-statistics ↩

4. Data from September 2020 includes cases recorded on both LIBRA and Common Platform. ↩

5. Note: Figures may not sum due to rounding ↩

6.  Criminal Procedure Rules 2020 and Criminal Practice Directions 2023 https://www.gov.uk/guidance/rules-and-practice-directions-2020 ↩

7.  [The Code for Crown Prosecutors The Code for Crown Prosecutors] (https://www.cps.gov.uk/publication/code-crown-prosecutors) ↩

8.   Code for Private Prosecutors - Private Prosecutors’ Association ↩

9. Private Prosecutions: safeguards, House of Commons Justice Committee, 2 October 2020, para. 60 ↩

10. The Code for Crown Prosecutors], chapter 4 ↩

11. Code for Private Prosecutors, Private Prosecutors’ Association, 2022 https://private-prosecutions.com/code-for-private-prosecutors/, para 5.1.2 ↩

12. This information is recorded for CPS case working purposes and not for the purpose of official statistics. The data provided may be subject to possible errors with data entry and processing, and these figures are provisional and subject to change as more information is recorded and updated. ↩

13. The Code for Crown Prosecutors https://www.cps.gov.uk/publication/code-crown-prosecutors, Chapter 2.1 ↩

14. ECR0038 - Evidence on Economic Crime, paras 3-7 ↩

15. [Private Prosecutions: safeguards, House of Commons Justice Committee, 2 October 2020] (https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/497/49702.htm), para.76 ↩

16. Private Prosecutions: safeguards, House of Commons Justice Committee, 2 October 2020, para.76 ↩

17.  CLRNN - Network Projects and Process, CLRNN 2: Review of Private Prosecutions, Jonathan Rogers, Update 16 Jan 2024 ↩

18. “Open court” refers to judicial proceedings which are open to the public to attend. ↩

19.  https://www.gov.uk/government/collections/criminal-court-statistics ↩

20. Section 29 of the Criminal Justice Act 2003 authorises the CPS and police to use the SJP whereas specified private prosecutors’ authority to use the SJP comes from the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016. ↩

21. This figure is calculated using internal management information data which is unpublished. ‘Other’ & ‘Not Assessed’ account for 11% of SJP defendants’ prosecutor. ↩

22. Private Prosecutions: safeguards, House of Commons Justice Committee, 2 October 2020 https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/497/49702.htm, para. 65 ↩