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Private Prosecutions An introduction28th May 2019 Business Crime
What is a Private Prosecution?
A private prosecution is “a prosecution started by a private individual (or entity) who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions„. It is permitted by Section 6(1) of the Prosecution of Offences Act 1985.
Why would someone want to take out a private prosecution?
The following are typical examples:-
A company trying to recover the proceeds of a theft or fraud by employee/director/partner/trustee/customer/distributor etc. as an alternative (or in addition) to civil litigation. A private prosecution is often cheaper and quicker than protracted civil litigation. Many companies prefer private prosecutions because they have a lower profile. This is particularly important for brand holders, who have a reputation to maintain and often privately prosecute vendors of counterfeit goods.
A defendant who has been found guilty or not guilty of a criminal offence might want to consider the merits of prosecuting someone who has attempted to pervert the course of justice or committed perjury in the course of the original case. Public prosecutors rarely prosecute their own witnesses, especially following a conviction.
Someone might want to privately prosecute where the police either don’t have the resources or have not investigated thoroughly, despite what is believed to be good merits. The rise in the number of private prosecutions is partly attributed to decreasing budgets for public prosecutions.
Individuals can come together to pursue a group prosecution. A good example is a situation in which a rogue trader steals money from a string of customers and the customers want to recover their money and reflect that wrongdoing in a criminal conviction. This approach can also have significant cost advantages.
Can a Public Prosecutor stop a Private Prosecution?
If the private prosecution is being pursued in bad faith or is clearly vexatious, a public prosecutor can take over and stop a private prosecution. In some circumstances, a public prosecutor may wish to take over and run the remainder of the case. Although a private prosecutor is not obliged to abide by the public prosecutor’s ‘interests of justice’ test when pursuing a prosecution, it makes sense to do so for a number of reasons.
How are Private Prosecutions funded?
Many companies will privately fund a case because it is cost-effective to do so when compared to the cost and delay in civil litigation or the amount they are trying to recover. Individuals usually have to privately fund on the same basis, but many cases do not involve the recovery of money. Crowd Funding can therefore play a vital role for people who simply cannot afford to fund some or all of a private prosecution by themselves. Crowd Funding can help in several ways:-
Providing the initial funding to complete or undertake an investigation so that a public prosecutor will adopt the case for the purposes of court proceedings.
Initial funding leading to a decision that we can run a prosecution on a deferred fee arrangement. This is a funding arrangement in which we agree to delay a client’s payment of our fees until the end of the case and the resulting application to the court for payment of prosecution costs. Not all cases can be funded in this way and the arrangement is not without risk.
Funding for the whole case, whether it finishes relatively early with a guilty plea or after trial.
Can Prosecution Costs be recovered at the end of the case and can I be compensated?
Several scenarios arise here:-
Assuming they have an ability to pay and they are found guilty, the defendant can be ordered to make a contribution towards the prosecution costs.
However, the court can refuse to order payment of some or all of a private prosecutor’s costs, particularly where a defendant has been found not guilty and the court determines that the prosecution was not well founded. It is therefore very important to regularly review the merits and objective of the prosecution to avoid negative costs issues at the end of the case.
Confiscation proceedings can arise in cases where the defendant has obtained a financial ‘criminal benefit’. Subject to meeting the statutory criteria and assuming the existence of ‘recoverable property’, assets may be recovered from a convicted defendant to address the private prosecutor’s loss.
Do I need to be legally represented to privately prosecute?
No, but compliance with the criminal procedure rules and various rules of evidence is not straightforward. Disclosure obligations are tricky, even for a public prosecutor. Unrepresented private prosecutors can become unstuck, even in the most straightforward case, especially where the defendant is represented by a specialist defence team. Private prosecutors therefore usually engage a law firm to run the case on their behalf. The chosen firm should not only have a facility to privately prosecute but should also be able to litigate in the civil courts and provide advice from any number of departments of potential relevance to the case. This might include - Commercial, Insolvency, Regulatory, Family law or even Clinical Negligence advice.
JMW Solicitors have had a Criminal and Business Crime department for nearly 40 years. The firm as a whole has just over 500 staff based in Manchester, Liverpool and London. The department employs several former police officers as well as some very senior former crown prosecutors. This is backed up by a team of one of the largest Business Crime and Regulatory teams in the country. All of this comes together to ensure that the private prosecutor’s chances of success are maximised on the most cost-effective basis.
Prosecuting someone in criminal proceedings is a serious step and a prospective private prosecutor must take detailed expert legal advice before embarking on the exercise. It is not without risk, but a properly presented private prosecution can be a very effective way in which to recover losses and obtain justice where the public options or other forms of litigation are not available or preferable.
Evan Wright is a partner in the Regulatory department at JMW Solicitors.