A criminal prosecution is not always started by the police or the Crown Prosecution Service. An individual, business, charity or other organisation may bring a private prosecution. Once the case begins, however, it is not beyond public oversight. The Director of Public Prosecutions, acting through the CPS, has a statutory power to take it over.
Taking over does not necessarily mean that the case will be stopped. The CPS may continue the prosecution itself, discontinue it, or decide that there is no reason to intervene. Revised CPS guidance published on 31 July 2026 explains how that decision should be made and adds a structured system of senior review.
For a defendant, this can be important. A request for CPS review may expose an evidential weakness, a disclosure problem or a public-interest issue. It is not, though, a shortcut which automatically ends a properly brought case.
What is a private prosecution?
Section 6(1) of the Prosecution of Offences Act 1985 preserves the right of a person to institute criminal proceedings. The private prosecutor takes responsibility for preparing and presenting the case, complying with disclosure duties and acting fairly as a minister of justice.
The right is subject to safeguards. Some offences require the consent of the Attorney General or the Director of Public Prosecutions. The court can refuse to issue a summons where the legal test is not met, and it can stop proceedings which are an abuse of process. A private prosecutor is also bound by the ordinary rules of evidence and criminal procedure.
What power does the CPS have?
Under section 6(2) of the 1985 Act, the Director of Public Prosecutions may take over a private prosecution at any stage. The power provides public supervision while preserving the underlying right to prosecute privately.
The CPS applies the Full Code Test. It asks first whether there is sufficient evidence to provide a realistic prospect of conviction. If there is, it asks whether a prosecution is required in the public interest. The CPS does not have to accept the private prosecutor’s assessment of the evidence or public interest.
The Supreme Court confirmed in R (Gujra) v Crown Prosecution Service [2012] UKSC 52 that the CPS can apply its ordinary Full Code Test when deciding whether to take over and discontinue a private prosecution.
The three possible outcomes
The CPS takes over and continues the case
The CPS guidance says that it will take over and continue a private prosecution where the Full Code Test is met and there is a particular need for the CPS to conduct the case.
That need may arise where the allegation is serious and is the kind of case the CPS would ordinarily prosecute; where disclosure is unusually detailed; where highly sensitive material is involved; where complex special measures or witness-anonymity applications are required; or where extradition may be needed.
The private prosecutor then loses control of the prosecution. The CPS becomes responsible for decisions about charges, evidence, disclosure, witnesses and the future conduct of the case.
The CPS takes over and stops the case
The CPS will take over in order to discontinue where the evidential stage or public-interest stage of the Full Code Test is not met. The guidance identifies other situations which may justify intervention, including an earlier promise of immunity, a caution which has already resolved the conduct, unacceptable interference with another prosecution, or a case which is vexatious or malicious.
Once the CPS takes over, it may use the standard statutory procedures to discontinue proceedings. Depending on the stage and circumstances, the defendant may have a right to require the proceedings to continue to trial. That is a technical decision on which legal advice should be taken immediately.
The CPS does not take over
Where the Full Code Test is met and there is no particular need for the CPS to conduct the prosecution, it can leave the case with the private prosecutor. This does not amount to a CPS endorsement of the allegation or mean that it believes the private prosecutor is right to bring the case. It means the guidance does not require public intervention at that point.
The court remains responsible for ensuring a fair trial. The defendant can still challenge admissibility, seek disclosure, argue abuse of process and make a submission that there is no case to answer where the legal tests are met.
How is a CPS review requested?
A defendant or private prosecutor can ask the CPS to exercise its section 6(2) power. The request should be focused and supported by documents. Simply saying that the case is unfair or weak is unlikely to assist.
The CPS may invite the private prosecutor to provide the evidence, unused material and case papers. It may also invite the defendant to submit material relevant to the evidence, the defence or the public interest, although the defendant is not obliged to reveal the defence case merely because the CPS asks. The police may be asked for material they hold. The current guidance indicates that parties will generally be given 14 days to respond, but the timetable can depend on the urgency and stage of the case.
Before providing material, the defence should consider privilege, the right to silence, the defence statement timetable and the risk of revealing strategy prematurely. A carefully prepared legal submission can identify the decisive point without handing the prosecutor a roadmap to cure every weakness.
What has changed in the 2026 CPS guidance?
The revised guidance creates clearer escalation and assurance arrangements. The reviewing lawyer must produce a written decision. A senior prosecutor must endorse the decision in writing. The Special Crime Division must be informed before the decision is communicated and provides assurance of the approach taken.
That assurance process is not a second independent decision. Its purpose is consistency and oversight. For defendants and private prosecutors, the practical benefit is that the reasons should be identifiable and the decision should have received scrutiny above the level of the initial reviewer.
Why disclosure can be decisive
A private prosecutor has the same core disclosure responsibilities as a public prosecutor. They must retain relevant material, schedule unused material and disclose material which might reasonably be considered capable of undermining the prosecution case or assisting the defence.
The 2026 guidance addresses a particularly difficult situation: the CPS may know of material which satisfies the disclosure test but be unable to ensure that the private prosecutor discloses it. In that event, the CPS must take over. What happens next depends on whether a fair and properly supported prosecution can continue.
This makes early investigation important. The defence should identify relevant police reports, digital material, internal correspondence, civil proceedings, expert material and previous accounts which may sit outside the private prosecutor’s file. A disclosure request is most effective when it explains why a category of material exists and how it may bear on a live issue.
Does misconduct by a private prosecutor mean the CPS will intervene?
Not by itself. The guidance says that alleged misconduct is generally a matter for the court, which can regulate proceedings and enforce professional and disclosure duties. The CPS is not a general complaints body for private prosecutions.
Misconduct may nevertheless be relevant where it affects the reliability of the evidence, reveals a malicious or vexatious purpose, causes a disclosure failure or makes a fair trial impossible. The important task is to connect the conduct to the legal test, supported by evidence.
What about costs, compensation and confiscation?
Costs can be significant. A private prosecutor may ask for prosecution costs, and the court has powers to order payment from central funds in appropriate cases. The Court of Appeal in R v BDI [2025] EWCA Crim 1289 explained that failure to involve state authorities can be relevant to costs and that a substantial private prosecution may be limited to CPS rates. It did not say that every private prosecution must first be referred to the police or CPS.
After conviction, questions may also arise about compensation and confiscation. The revised CPS guidance explains circumstances in which the CPS may become involved, particularly where specialist public powers or expertise are needed. These issues can affect the financial consequences far beyond the sentence for the offence itself.
What should a defendant do?
Treat a private prosecution as a real criminal case from the moment papers arrive. Missing a hearing or failing to respond to a summons can have immediate consequences. The defence should check the validity and clarity of the charge, obtain the prosecution papers, preserve relevant evidence and identify any connected police or civil matter.
A request for CPS review is most useful where it is made for a defined reason—for example, the evidence falls below the Full Code Test, prosecution would be contrary to the public interest, essential disclosure cannot be secured, or public conduct of the case is necessary. The timing should be coordinated with the court timetable so that the request does not distract from preparing the defence.
How Chetwode Criminal Defence Solicitors can help
Chetwode Criminal Defence Solicitors can advise defendants facing privately brought criminal proceedings. We can assess whether a CPS takeover request is appropriate, prepare written representations, pursue disclosure and protect the defence position while the CPS review takes place.
When you contact us, we can also advise on applications to dismiss or stay proceedings, evidential challenges, trial preparation and costs. If you have received a summons, requisition or charge in a private prosecution, contact us promptly. The early decisions can shape both the CPS review and the case before the court.