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Lawfare · Private prosecutions: UK and US · September 22, 2026

Who may prosecute you?
Two answers, one ocean apart.

In England and Wales, any person or company may start a criminal case: apply to a magistrate for a summons or an arrest warrant, and run the prosecution through to trial, without the police or the Crown Prosecution Service. In the United States, the Supreme Court has held that a private citizen “lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” This page explains the difference, the safeguards on each side, the best case for the English rule, and why it matters when an American’s speech ends up in someone else’s criminal file.

The short version · England and Wales · The United States · The case for it · The risk · Across the border · What Congress can do · What this page is not

Editorial ink illustration in two panels divided by a strip of sea. On the left, a single hand slides a folded paper tied with red ribbon onto an empty English magistrate's bench beside a quill and inkwell. On the right, the same kind of paper lies on the steps of a columned American courthouse, stopped before a closed and locked door. — Illustration for Restore the First. On one side, a private complaint goes straight to the bench. On the other, it has to go through the prosecutor first.

The short version · side by side

Same common-law root. Opposite answers.

Both systems grew out of English common law, under which the victim of a crime often brought the prosecution. England kept that right and put it in a statute in 1985. America handed prosecution to public officers and treats a criminal case as the government’s business, not the complainant’s. Scotland and Northern Ireland have their own rules; “UK” on this page means England and Wales unless stated otherwise.

The question	England and Wales	United States
Who may bring a criminal case?	“Any person.” The right is preserved by section 6(1) of the Prosecution of Offences Act 1985. Individuals, companies, and charities use it; the RSPCA is a regular private prosecutor. POA 1985 s.6 ↗	The government. “A private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ↗
How does a case start?	The private prosecutor files a written application with a magistrates’ court for a summons or a warrant for arrest. Magistrates’ Courts Act 1980 s.1 ↗ · Crim PR r.7.2 ↗	A public prosecutor files a complaint or information, or gets a grand jury indictment. Some states let a citizen file a complaint, but it usually goes to the prosecutor for approval first; in Pennsylvania, for example, the district attorney must approve it. Pa.R.Crim.P. 506 ↗
Is the accused heard before a summons or warrant issues?	No right to be heard. “A proposed defendant has no right to be heard,” although the magistrate may choose to give notice or hear them. R (Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin) [22] ↗	There is usually no hearing before charges are filed here either. The difference is who makes the request: a public officer. Where a citizen asks for a warrant, the state’s prosecutor “must be able to present arguments as to why an arrest warrant should not issue.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981) ↗
Who screens the case?	The magistrate, applying a low threshold. A summons should generally issue if the basic legal tests are met, “unless there are compelling reasons not to do so” such as vexation or abuse of process. The private prosecutor must certify that the allegations are “substantially true” and that the application “discloses all the information that is material.” r.7.2(6) ↗	The prosecutor. Whether to charge is left to the prosecutor’s judgment, and a public prosecutor answers to voters or to elected officials.
Can the state stop it?	Yes, but only if it steps in. The Director of Public Prosecutions may take over a private case “at any stage” and end it if it fails the Code for Crown Prosecutors test (enough evidence and in the public interest). The Supreme Court upheld this policy 3–2 in 2012. R (Gujra) v CPS [2012] UKSC 52 ↗	There is nothing to stop, because the case belongs to the state from the start.
Who pays?	In cases involving more serious (indictable) offences, a court may order the private prosecutor’s expenses paid from central (taxpayer) funds. Public authorities are excluded. POA 1985 s.17 ↗	The public funds the prosecutor. The complainant pays nothing and controls nothing.
Exceptions	Some offences need the consent of the Attorney General or the DPP. Stirring up racial hatred under Part 3 of the Public Order Act 1986 is one. s.27 ↗ The texts of the two main online-speech offences contain no such requirement: “grossly offensive” messages (Communications Act 2003 s.127) and false communications (Online Safety Act 2023 s.179).	A federal court may appoint a private lawyer to prosecute criminal contempt of its own orders, but only if the public prosecutor declines, and never the lawyer for a party that benefits from the order. Young v. U.S. ex rel. Vuitton, 481 U.S. 787 (1987) ↗
Can it reach someone abroad?	Not directly. The CPS lists “extradition is required” as one reason it may take over a private case, because extradition runs between governments. CPS legal guidance ↗	“International extradition requests are not initiated by private individuals. Only prosecuting authorities may initiate an extradition request.” U.S. DOJ, Office of International Affairs ↗

England and Wales · how a private prosecution works

From a written application to an arrest warrant, with no public prosecutor involved.

The Crown Prosecution Service states the principle plainly: “Parliament, through the construction of section 6, has specifically allowed for private prosecutions to take place without any involvement by the CPS.” Here is the path, step by step, in the words of the rules themselves.

1
The right. “Nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.”Prosecution of Offences Act 1985, s.6(1)
2
The application. The private prosecutor files a written application setting out the allegation. For an arrest warrant (not just a summons), the application must also show that the offence can be tried in the Crown Court or punished with imprisonment, or that the defendant’s address isn’t known well enough to serve a summons. A private applicant must also disclose any earlier applications and any related proceedings, and state that the application “discloses all the information that is material to what the court must decide.”Criminal Procedure Rules 2025, r.7.2(3)–(6); Magistrates’ Courts Act 1980, s.1(4) · legislation.gov.uk ↗
3
Without notice. The application is usually decided with only the applicant present. “A proposed defendant has no right to be heard, but the magistrate has a discretion to: (a) Require the proposed defendant to be notified of the application. (b) Hear the proposed defendant if he thinks it necessary.”R (Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin) at [22](6), as quoted in evidence to the Justice Committee ↗
4
A low bar. The magistrate checks that the allegation is an offence known to the law, that its essential elements are present on the face of it, that it isn’t time-barred, that the court has jurisdiction, and that the applicant has authority to prosecute. “If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so – most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.” “There is no obligation on the magistrate to make enquiries.”Kay at [22](1)–(5), restating R v West London Justices, ex p Klahn [1979]
5
The duty of candour. Because the other side is absent, the applicant must argue the other side’s case too: “a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge.” Withholding material information “is in itself a critical factor in determining whether a summons should be set aside as an abuse of the process of the court.” In Kay, the High Court later ordered the private prosecutor to pay costs of £250,000.Kay at [24]–[26], quoting Re Stanford International Bank [2010] EWCA Civ 137 and ex p Low [1988] · Kingsley Napley on the costs order ↗
6
The state’s backstop. The DPP “may nevertheless” take over a private prosecution “at any stage.” Before 2009, the DPP stepped in to stop a case only if there was “clearly no case to answer.” Since 2009, the CPS stops a case if it fails either part of the test (enough evidence, or in the public interest). This includes cases “highly likely” to be an abuse of process. The Supreme Court upheld the change 3–2 on November 14, 2012 (Lords Wilson, Neuberger and Kerr; Lord Mance and Lady Hale dissenting). The backstop only works when it is used: the CPS must decide “when asked to do so,” and someone has to ask.POA 1985 s.6(2) · Gujra [2012] UKSC 52 at [1] ↗ · CPS guidance ↗

The United States · why the answer is different

A criminal case is the government against the governed, not one citizen against another.

American law removed the private prosecutor on purpose. In 1973 the Supreme Court said that “in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” A citizen cannot force a prosecution, and cannot bring one.

Chief Justice Roberts set out the reasoning in 2010, dissenting (with Justices Scalia, Kennedy and Sotomayor) when the Court dismissed a case about a privately brought contempt prosecution: “The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” He traced the principle to Blackstone and to John Marshall, who told the House in 1800 that criminal judgment “must be at the prosecution of the nation.” Robertson v. U.S. ex rel. Watson, 560 U.S. 272 (2010) ↗

The American rule has two narrow openings. First, “many jurisdictions contain provisions for private citizens to initiate the criminal process,” and the Court noted the recommended practice that such a complainant “should be required to present the complaint for prior approval to the prosecutor.” Pennsylvania’s rule is typical: a non-police complaint goes to the district attorney, who approves or rejects it and must give reasons; the citizen can then ask a court to review the decision. Second, federal courts may appoint a private prosecutor for contempt of their own orders, as a “last resort.” Since 1987, the appointee cannot be the lawyer for a party that benefits from the order. Young, 481 U.S. at 801–809 ↗

That second opening is not merely theoretical. It is how Steven Donziger came to be prosecuted by a private law firm after the U.S. Attorney declined. See the docket, Instrument 6 →

The strongest argument for the English rule

A safeguard “against inertia or partiality on the part of authority.”

A coalition that exists because institutions would not act should take this argument seriously. It is a good one.

The argument

When the state won’t prosecute, the citizen can.

Lord Wilberforce called it “a valuable constitutional safeguard against inertia or partiality on the part of authority.” Lord Diplock called it “a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.”
The CPS itself says a private prosecution’s success “is no indication that the CPS ought to have prosecuted, precisely because Parliament has quite deliberately allowed for prosecutions to take place without CPS involvement or oversight.”

Gouriet v Attorney-General [1978] AC 435, as quoted in Gujra at [27] ↗

Where we come out

The right to prosecute isn’t the problem. Coercion granted on one side’s word is.

We do not argue that Britain should abolish private prosecution. That is Britain’s decision, and the right has served victims the state ignored.
Our concern is narrower. A summons or warrant can issue on a one-sided application, against a low threshold, and the main protections (candour, CPS review, stays for abuse) mostly come into play afterwards. When the case is built on speech, the harm often happens in that gap.

The coalition’s position, adopted with this page, September 22, 2026.

The risk · what Britain’s own Parliament found

The Post Office used “any person” to prosecute hundreds of its own subpostmasters.

The most serious miscarriage of justice in modern British history was a private prosecution. “The Post Office has no special authority to bring special private prosecutions. Instead, it used the powers in section 6(1) of the Prosecution of Offences Act 1985 to bring private criminal prosecutions.” As of December 2024, it had identified 700 convictions in cases it prosecuted between 1999 and 2015 “in which Horizon evidence may have featured.” House of Lords Library ↗

In 2020 the House of Commons Justice Committee reviewed the system. It found that the existing safeguards “are effective at filtering out weak claims,” but that “it is not sufficient to rely on the courts alone to identify and remedy problematic prosecutorial practices,” and that “at present there is no reliable data that records who is prosecuting offences in the courts in England and Wales.” Its chair, Sir Robert Neill, said: “The power to prosecute individuals, and potentially deprive them of their liberty, is an onerous power which must be treated with the utmost seriousness.” Private prosecutions: safeguards, HC 497 ↗

On March 6, 2025, the Ministry of Justice opened a consultation on regulating private prosecutors. The options included a mandatory code of practice and accreditation of private prosecutors. The consultation is closed. When we checked in September 2026, no government response had been posted on the consultation page. GOV.UK ↗

Across the border · why this belongs on an American site

The same words, moved to a forum with different rules.

An American who publishes lawfully at home has the First Amendment. An English magistrate hearing a without-notice application applies English law. If that American’s speech is cited in the application, they have no right to be heard at that stage, and the First Amendment is not a defense in an English court. Speech is protected there too, under Article 10 of the European Convention on Human Rights, but that right is qualified, and many English speech offences have no counterpart in American law.

A private prosecutor’s reach overseas is limited. Extradition runs between governments, and neither the CPS nor the U.S. Justice Department treats it as something a private party can start. But coercion does not need extradition to bite. An application for arrest or device seizure, even a refused one, can affect travel, work, family, and the willingness to keep speaking.

The coalition’s due-process case study reproduces one American’s public statement about an ex parte application, made “by a prosecuting party in a UK proceeding,” for his arrest and the seizure of his devices, which the judge declined in full. This page explains the general rules on who can bring criminal cases in England and Wales. It does not describe that proceeding or its parties, and takes no view on either.

What Congress can do

Congress can’t change English procedure. It can decide what America does in response.

The rule

No American should face an application for arrest, seizure, or restraint grounded in lawful speech without notice and an opportunity to be heard.

This is the same principle as the due-process case study. It is content-neutral and protects speakers of every viewpoint equally.

Coalition position, September 2026.

Three asks

What U.S. institutions can do without touching any foreign court.

Decline to assist. Direct federal agencies not to help (with data, service of papers, or extradition support) foreign criminal process based on speech the First Amendment protects, whether a public or a private prosecutor brings it.
Count it. An annual State Department report on foreign applications and requests targeting Americans over speech that is lawful in the U.S., with private prosecutions reported separately.
Shield, prospectively. The GRANITE Act (H.R. 10174) would bar U.S. recognition or enforcement of foreign censorship judgments and orders.

Model text for the first two is on the First Amendment Remedies Act page. These are coalition proposals, not pending bills. All five asks and six bills →

What this page is not

Not legal advice. This is a general public explainer of two legal systems, drawn from statutes, court rules, published judgments, and parliamentary records linked on this page. Anyone facing a real proceeding in either country needs a lawyer qualified there.

Not a comment on any proceeding. This page names no party, counsel, or pending case, and does not say whether any particular proceeding was, or was not, a private prosecution. The cases it cites are published appellate decisions and official records.

Not a claim about anyone’s intent. Private prosecution is lawful in England and Wales, and most private prosecutors, in the Justice Committee’s words, “uphold high standards.” Our argument is about how the procedure is designed, not about the motives of anyone who uses it.

Scope. The UK rules described are those of England and Wales. In Scotland, private prosecution is extremely rare and requires the High Court’s permission through a “bill for criminal letters.” Example: [2024] HCJAC 40 ↗ In the U.S., rules on citizen complaints vary by state. Law stated as of September 22, 2026.