The rise of private prosecutions by individuals or companies as a vehicle in the recovery of losses incurred through criminal activity is on the increase.
The Police and other law enforcement bodies are having to streamline their activities in the face of continuing cutbacks and limited resources which see them having to prioritise certain types of crime. The budgetary restraints now faced by such agencies places enormous pressure on them to focus activity which effectively reduces their abilities to delegate resources in certain areas of criminality. This was highlighted recently by the Lord Chief Justice when he said “there is an increase in private prosecutions at the time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions”.
If you as an individual or a member of a company are a victim of such an offence, which may have been suffered internally through a breach of trust or externally by an attack on your business or personal assets, to whom do you turn?
Naturally, your first port of call is to the authorities, namely the Police. This is the most cost efficient option and if your crime is investigated and prosecuted, may lead to a conviction and recovery of your assets or financial confiscation that reflects that loss.
However, if for some reason your case is “screened out” by the Police and not investigated, what are your options? Two are available:
- Civil litigation and asset recovery, and/or
- Private prosecution
The latter will of course not be familiar to many but is a right preserved by Section 6(1) of the Prosecution of Offenders Act 1985. Similar to any prosecution by state authorities, such cases are prefaced by investigation and evidence gathering. This can be conducted by private specialist investigators directed by a law firm who have the necessary skills and ability to carry out such work. The client of course retains control of such activities with proactive and reactive flexibility not always available to state prosecutions, which are frequently subject to the budgetary restraints as suggested above.
There is no duty for a private prosecutor to notify the CPS that such a prosecution has commenced, albeit in some cases, a private prosecutor must seek the consent of the Attorney General or the Director of Public Prosecutions (DPP) before commencement of proceedings. Equally, the DPP has a power under Section 6 (2) of the Prosecutions of Offences Act 1985 to take over such private prosecutions. It is also possible to run parallel investigations both via a civil track as well as the criminal process. There are advantages and disadvantages to both.
Private prosecutions must also act in good faith and administer justice in the same way as a state prosecution must. It is advisable to comply and adhere to the CPS Code for Crown Prosecutors together with Disclosure Protocols and Criminal Procedure Rules.
The key to any such action is for a thorough review of the circumstances of each case and for the correct advice given by those who are experienced in prosecutions and investigation. These are skills not always available to every law firm proposing to conduct such cases on behalf of clients.
Woodfines is a multi-discipline firm which has experience in these areas, in particular, prosecuting for outside agencies together with the investigation of criminal offences and the recovery of assets through civil process. We will advise on potential cost and timescales, whilst being realistic about outcomes.