Private prosecutions are an important part of the criminal justice system in England and Wales. They are a constitutional alternative to a State prosecution, which ensures that there are no barriers to a victim’s ability to bring a prosecution for a criminal offence (even where the Police cannot, or will not, investigate).

Private Prosecutions can be an attractive alternative for those in a financial position to fund a private criminal investigation. They are particularly suited to lower priority crime, such as employee theft and fraud, as state-funded law enforcement agencies' resources become ever more stretched.

Unlike civil proceedings, cost recovery is not generally the primary consideration for individuals or businesses looking to bring a private prosecution. The driving objective must always be obtaining a just outcome, and often, costs can be an afterthought. However, two recent cases show the impact that decisions in the early stages of bringing a private prosecution can have on the ultimate cost implications for the private prosecutor.

BDI & Others [2025] EWCA Crim 1289

This private prosecution concerned a range of offences, including conspiracy to defraud and money laundering. The pre-trial period saw a series of legal arguments; in short, this resulted in the Crown Court staying the proceedings due to a finding of an abuse of process, with the Court of Appeal subsequently reversing this decision and ordering the proceedings to resume.

Naturally, significant costs were incurred by the private prosecutor in unsuccessfully resisting the initial application by the defence to stay the proceedings and then appealing to the Court of Appeal. They made an application under section 17 of the Prosecution of Offences Act 1985 to recover those costs from ‘central funds’ (i.e., funds provided by the government). The Government minister responsible for central funds was invited to intervene at this stage.

The Court applied the two-stage test in determining whether to make the order: whether the expenses were properly incurred, and what amount was reasonably sufficient to compensate the applicant (the private prosecutor). In reaching their decision, the Court considered a range of legal authorities and made two important determinations.

Firstly, whilst it is not a requirement to have reported an offence to the police before bringing a private prosecution, state prosecuting authorities (the police, the CPS, the SFO, etc.) should be given a ‘reasonable opportunity’ to decide whether to undertake a prosecution. What this looks like can vary. In some cases, an investigation by the police or Action Fraud would likely suffice. However, one may interpret that privately investigating and bringing the prosecution, then referring it to the CPS to take over and continue would constitute a reasonable opportunity.

Secondly, there is an obligation on the prospective private prosecutor to adequately test the market when deciding on legal representation. As more legal practices incorporate private prosecutions into their specialisms, and fees become more competitive, it is suggested that prospective private prosecutors should tender for the best value representation (considering geographical area, complexity and other factors), given the potential ultimate burden of the costs on central funds.

The Court ultimately held that a failure to give state prosecuting authorities their ‘reasonable opportunity’, and failure to test the market adequately, can lead to a reduction in the cost award to the level the state would have incurred in those circumstances. For many private prosecutions, this can be a significant reduction.

R (on the application of Antony Bates) v Highbury Corner Magistrates’ Court [2025] EWHC 2532 (Admin)

In contrast, this case concerned a private prosecutor who was not represented. The charges in question were for fraud, and the SFO had declined to prosecute. The defendant made an application to the High Court for a judicial review of the decision to issue the summons and send the case to the Crown Court for trial. As such, the defendant incurred significant legal costs in both defending the criminal proceedings and bringing the proceedings in the High Court.

The High Court found that the application for summons was an abuse of process and vexatious. The reasons for this all stemmed from the private prosecutor failing to meet the procedural and legal obligations that they were subject to. Their decision cited a failure to comply with the duty of candour, insufficient evidence and non-compliance with procedural requirements.  

In a landmark cost ruling, the High Court ordered the private prosecutor to pay the defendant’s legal costs for the criminal proceedings and the judicial review proceedings. The usual legal position for High Court proceedings arising from criminal matters is that the successful party can recover their costs from central funds under the 1985 Act, save for ‘exceptional circumstances’. However, the High Court rejected this and determined that their usual power under section 51 of the Senior Courts Act 1981 could be used, namely that costs follow the event. It is understood that the costs the private prosecutor had to pay to the defendant exceeded £500,000.

Summary

For most first-time private prosecutors, the immediate priority is successfully applying for a summons. However, these two cases show that rushing to this stage without proper consideration can have significant cost implications later down the line. The foundations of a properly brought private prosecution should be early engagement with state prosecuting authorities and identifying legal representation suitable for the case. Quite often, there will be good reasons for instructing a specialist firm with particular expertise, but it must be shown that this was considered at the time.