The Changing Landscape of Private Prosecutions

17th March 2021 Business Crime

An individual’s right to prosecute a criminal matter in England and Wales is enshrined within section 6(1) Prosecution of Offences Act 1985. Historically, this constitutional right has been rarely exercised, particularly by individuals. However, today more and more private prosecutions are being instigated across the country and public awareness of them has never been higher. In this blog we highlight some of the changes we are experiencing in our practice in this area.

What are we seeing on a daily basis?

At JMW we are one of the few national firms who have developed genuine expertise in private prosecutions and we deal with a growing number of enquiries and prosecutions on a daily basis. Many of our clients come to us because they are the victim of financial crime, often in a business setting. They are realistic about the length of time it may take the police to effectively investigate their complaint, if they investigate it at all, and are seeking justice within a reasonable timeframe.

The most recent ONS figures available show that in the year ending March 2019 there were 3.8 million incidents of fraud, with 76% of incidents of victims incurring a financial loss. But only one in seven incidents were actually reported to Action Fraud or the police. Out of more than 50,000 fraud investigations by police forces, only 7,725 resulted in a prosecution which is less than 15% of cases investigated. Despite the numbers of cases rising nationally, the number of cases prosecuted fell by 18% on the previous year.

With such staggeringly low numbers of prosecutions being brought by the police, it is unsurprising that interest in private prosecutions for financial crime is on the increase. However, we are also experiencing a growing number of individuals pursuing private prosecutions for other types of offences such as threats of violence, harassment or the sending of malicious communications.

Why choose to prosecute privately?

The criminal law provides a robust legal framework that can be engaged relatively cheaply by the private prosecutor. By contrast, the civil tools available are often either too expensive or simply lack the bite that the criminal law provides.

A private prosecution can be a powerful strategy, on its own, or in conjunction with civil proceedings. Key benefits include:

  • The private prosecutor is entitled to recover their costs in the Crown Court, whatever the result, as long as the case is properly pursued;
  • Orders are issued by the Court but enforced by the police;
  • A restraint order can be obtained early in the proceedings protecting assets from being diminished;
  • Confiscation proceedings can be instigated at the end of the case and awards of compensation can be made to assist with recovery of funds by the victim;
  • The private prosecutor controls the speed and direction of the investigation;
  • Criminal cases are most often cheaper and quicker than their civil counterparts;
  • The penalties in criminal cases can, in the most serious cases, include prison sentences.

What are the risks?

There is a significant level of responsibility attached to a private prosecution, which must be managed carefully. The RSPCA, which recently announced it plans to cease prosecuting cases of animal cruelty privately, has faced criticism in the past regarding its practices, with some seeing it as over-eager to bring court action.

A recent high profile case involving prosecutions by the Post Office against its own employees has led to the setting up of an inquiry by a parliamentary select committee, bringing the role of private prosecutors under the spotlight. The inquiry held evidential hearings last year focusing on cases where the prosecutor is also the victim and investigator of the offence. This was after the Criminal Cases Review Commission (CCRC) referred 47 convictions of sub-postmasters for appeal after it was discovered that the prosecutions were unsafe due to problems with the Post Office’s ‘Horizon’ accounting system.

It is essential that private prosecutors comply with their duty of candour when bringing proceedings and ensure all relevant circumstances and material are disclosed to the court and the other parties alike, particularly where it is potentially adverse to their application and/or case. Failure to do so could lead to a summons being set aside or proceedings collapsing with no recourse to costs spent bringing the proceedings to that stage.

Is the costs regime changing?

At present a private prosecutor has the ability to recover their reasonably incurred costs even where the defendant is acquitted. However, the Government’s response to the Justice Select Committee Report (published on 2 October 2020) suggests that the landscape of costs is changing. The Government’s response has suggested that:

  1. Costs recoverable from central funds by a private prosecutor should be limited in the same way that costs so recoverable by an acquitted defendant already are, i.e. they would be capped at legal aid rates; and
  2. They intend to consider whether there should be a wider discretion to reduce or withhold payment of costs from central funds in the event of an acquittal.

It is clear from the examples set out above that great care must be taken in bringing private prosecutions, and that expert legal advice should be obtained from the outset of any investigation.

Why choose us?

At JMW our London-based business crime team have real experience of privately prosecuting cases, including high value frauds and cases involving cross-border issues. We use independent private investigators, who have specialist experience in UK law enforcement dealing with some of the country’s most serious criminal investigations. This means we are well placed to provide expert guidance from an early stage, giving our clients the best possible chance of obtaining a just outcome.

If you have a case you would like to discuss, please do get in touch with us on LondonBCR@jmw.co.uk or via our website.​​​​​​

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Amy Shaffron is a Partner located in London in our Business Crime & Regulation department

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Daniel Martin is a Partner located in London in our Business Crime & Regulation department

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