Private prosecutions and the future of access to justice

The landscape of criminal justice in England and Wales is undergoing a significant transformation, marked by the increasing prominence of private prosecutions. Once a relatively rare phenomenon, these privately initiated criminal proceedings are now a more visible and, at times, contentious feature of the legal system. This shift is not merely an academic curiosity but a direct consequence of broader systemic pressures, including public sector cuts, burgeoning case backlogs, and a perceived retreat of state enforcement in certain areas of criminality. For legal practitioners, understanding the drivers, benefits, risks, and proposed reforms surrounding private prosecutions is crucial, particularly as they grapple with the fundamental question: do private prosecutions genuinely enhance or inadvertently hinder access to justice?

The Enduring Right: A Historical Perspective and Modern Imperative

The right of individuals and organisations to initiate criminal proceedings is a deeply rooted common law principle, long predating the establishment of a centralised public prosecution service. This right has historically served as a vital constitutional safeguard, intended to act as a check against state inertia, partiality, or outright failure to uphold the law. The availability of a private route to justice is far more than a formal right: it becomes an essential mechanism for accountability and redress. Properly exercised, private prosecutions can check prosecutorial discretion, guard against governmental inertia, compel public authorities to apply standards more rigorously, and reinforce public confidence in the rule of law. Charities and public‑interest bodies—most notably the RSPCA—have long used this route to pursue harms that serve wider social interests. However, the mechanism is not without serious risks, as the Post Office Horizon scandal starkly demonstrates. Between 1999 and 2015 the Post Office, acting under its statutory power to prosecute, pursued over 700 sub‑postmasters on the basis of flawed Horizon IT evidence; many defendants pleaded guilty under pressure and the absence of effective external oversight contributed to one of the gravest miscarriages of justice in recent memory.

At the same time, there is a broad consensus that private prosecutions have significantly increased, notably among commercial actors and regulatory bodies. Transport operators and others have relied on streamlined procedures such as the Single Justice Procedure to bring large volumes of cases for fare evasion offences. This rise partly reflects systemic pressures—years of austerity, constrained police and Crown Prosecution Service (CPS) resources, and significant court backlogs—that have left private prosecution as a de facto gap‑filler where the capacity for public enforcement is limited. As a result, complex areas such as fraud, corporate wrongdoing and certain environmental harms have received less public enforcement, creating a gap that specialised private actors are stepping in to fill. For victims who feel abandoned by state authorities, private prosecutions can offer a direct route to accountability and redress, especially where claimants have already invested time and evidence-gathering. In this way, private prosecutions can prevent alleged wrongdoers escaping scrutiny simply because of prosecutorial priorities or resource constraints.

The growing demand for private enforcement has fostered the development of a specialised industry. Many private investigators and some legal firms now offer comprehensive services including evidence gathering and full-scale prosecution. These firms often possess expertise in niche areas, such as environmental harm, corporate misconduct, cyber-crimes, hate crimes, and various forms of fraud, which public bodies may lack the resources or specialised knowledge to pursue effectively. Private entities can bring specialised expertise and dedicated resources to complex cases that public bodies might struggle to manage. Their rise signifies a market response to unmet justice needs, with these entities handling a growing share of cases that public authorities might otherwise overlook.

Modern technology has also played a role in facilitating private prosecutions. The advent of crowdfunding platforms, for instance, has made it more feasible for individuals and smaller organisations, including charities, to raise the substantial funds required to initiate and sustain a private prosecution. This democratisation of funding mechanisms has lowered one of the most significant barriers to entry, enabling a broader range of actors to consider this route.

The Double-Edged Sword: Hindrances to Access to Justice

Despite their benefits, private prosecutions pose serious risks to equitable access to justice. They are often prohibitively expensive - sometimes costing hundreds of thousands of pounds - creating a de facto two‑tier system where the ability to seek criminal redress depends on financial resources. Marginalised and vulnerable groups are therefore less able to pursue accountability. Although successful private prosecutors may recover costs from central funds, reimbursements are neither guaranteed nor swift and do not remove the upfront barrier. The use of public money to underwrite private litigation also raises concerns about accountability and the absence of democratic oversight over decisions to prosecute.

Critics warn that private prosecutions can be misused for purposes other than genuine justice—settling personal scores, harassing individuals, or intimidating commercial rivals. Private prosecutors acting for victims or commercial clients may lack the impartiality expected of public prosecutors, who are duty‑bound to the public interest. The commercial incentives facing some private firms can skew priorities toward convictions rather than a balanced assessment of evidence. Defendants with limited means risk facing well‑resourced, highly motivated private teams, creating an inequality of arms in representation and resources. Unlike the CPS, which operates under unified codes and oversight, private prosecutions have lacked consistent standards for investigation, evidence handling and application of public‑interest tests. Without robust regulation, this variability increases the risk of miscarriages of justice and can place additional strain on an already overburdened criminal justice system through poorly vetted or vexatious cases.

Such concerns prompted the Ministry of Justice to propose significant reforms through a consultation paper launched in March this year. While the government acknowledged that private prosecutions are a necessary part of the justice system, it was keen to stress that they must be exercised responsibly within a proper regulatory framework. The core of the proposed reforms centres on strengthening safeguards through a dual system of accreditation and codes. Under the proposals private prosecutors (excluding individuals prosecuting on their own behalf) would need to be accredited by a dedicated body within the Director of Public Prosecutions’ (DPP) Office, with inspections overseen by the CPS, ensuring that accredited prosecutors operate under clear standards. They would also be subject to a binding code of conduct mandating that they operate with objectivity, fairness, and comply with the same public interest and evidential tests that bind Crown Prosecutors. This would bring a much-needed layer of professionalisation and accountability.

While these proposals are generally welcomed for addressing long-standing concerns, some critics worry about increased bureaucracy and the potential erosion of independence. However, the overarching sentiment is that this consultation represents a rare and crucial opportunity to create a more coherent, transparent, and accountable structure for private prosecution activities in England and Wales, aligning them with contemporary expectations of fairness and professionalism.

Navigating the Future of Private Justice

Private prosecutions represent a complex and evolving facet of the criminal justice system. They offer a vital safety net and a mechanism for accountability, particularly in an era where public sector retrenchment has left significant gaps in enforcement. However, their current operation presents significant challenges to the principle of equal access to justice. The prohibitive costs, the potential for misuse, and the historical lack of consistent standards create a system that can disproportionately benefit the wealthy and potentially undermine the fairness and integrity of criminal proceedings.

The proposed reforms, with their emphasis on accreditation, codes of conduct, and enhanced oversight, represent a critical juncture. They aim to harness the undeniable benefits of private prosecutions – empowering victims, checking state power, and filling enforcement gaps – while mitigating their inherent risks. For legal practitioners, the future will demand a nuanced understanding of this evolving landscape. The goal must be to ensure that private prosecutions genuinely serve the public interest and uphold the integrity of the justice system for all, not just those with the resources to pursue them. Careful implementation and ongoing vigilance will be essential to strike the right balance, ensuring that private justice truly contributes to, rather than detracts from, equitable access to justice in England and Wales.

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