Private Prosecutions - an alternative remedy

 

Quentin Hunt, barrister - The growing interest in private prosecutions

As a Direct Access qualified Barrister, enquiries usually come from members of the public in respect of defence work. I have historically undertaken private prosecutions, but these have been primarily on behalf of insurance companies and trademark holders. A little while ago the topic of private prosecutions was a hot topic in the news and I decided to write about it in a blog article about it on my website (www.bestcriminaldefencebarrister.co.uk).

Following the publication of the blog article I was surprised to receive a very large number of enquiries about undertaking private prosecutions for members of the public. It appears that people had undertaken google searches for ‘private prosecution’ and stumbled across my blog post. Many wanted to take cases forward.

Such was the level of interest that I decided to launch my own private prosecution direct access website www.private-prosecution.co.uk. The interest in the site has been significant. In this article I will outline what I see as the reasons for the increase in public interest in this area and the process and advantages of bringing a private prosecution. 

Private prosecutions- increased public awareness 

Lately, private prosecutions have received a good deal of press coverage; an example is the case of Ketan Somia who made front page news last year. Mr Somia was subject to a private prosecution at the Old Bailey for offences of fraud totalling some $20M, he was convicted and sentenced to 8 years imprisonment. Since then there have been numerous articles in newspapers such as The Times and Evening Standard all describing private prosecution as a ‘growth industry’.

As with many self-fulfilling prophesies the publicity that private prosecutions have received has led to more people being aware that this remedy exists and therefore choosing to pursue it. Having spoken to many members of the public about their experiences I have found that most feel that being the victim of crime and not having their complaints pursued by the authorities is literally adding insult to injury. It is therefore not surprising that many find an option such as private prosecution appealing where other avenues have not yielded success. 

Consideration of a Private Prosecution 

The main objective of a private prosecution is to see justice done. But a private prosecution does not come free. Many worry about the level of costs in bringing a private prosecution and the risks involved.

The risks first- there is a possibility that defence and court costs could be ordered against a person bringing a private prosecution. The good news is that such a risk is limited to cases where the prosecution in question is vexatious or improper. I have come across such cases and have universally advised the client not to pursue the proposed action. To date no client has ignored such advice.

In respect of costs- in the event the Prosecution is successful the Prosecutor may recover costs from the defendant if they have the means to pay (s.18 of the Prosecution of Offences Act 1985), or alternatively, from government central funds (s.17 of that Act). Reasonable investigation costs may also be sought. Even if unsuccessful the private prosecutor would be able to recover their costs. The Regulations are clear that in the recovery of costs ‘An order should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause.’ In cases where advice as to the merits of prosecution have been tendered by experienced counsel it is highly likely that costs will be awarded. The level of costs may be in part or in full dependent upon what amount is ‘just and reasonable’

The process of a private prosecution has many advantages for the client. As a victim of crime, they feel more involved in the process and feel like they have a degree of control over the speed and thoroughness of the investigation- an element lacking somewhat in state prosecutions.

Private prosecutions are often more efficient, quicker and more focused than a state prosecution and are often cheaper and quicker than pursuing other civil law remedies.

Companies are particularly keen on pursuing private prosecutions in lieu of civil actions. This is because private prosecutions are generally cheaper and due to the power of the criminal courts to order compensation it is possible that they can achieve the same aim as a civil action with the added benefit that the perpetrator will be criminally punished. In respect of fraud cases the criminal law does not have to show a loss, merely an intention to profit or cause loss, so companies who have been targeted unsuccessfully can take action. Attendant publicity can have a large deterrent effect making sure that others do not try the same thing and showing that the company will use the full extent of the law against those who target it. 

What else can be done? 

For many who pursue Private Prosecutions they are a last resort. Many would much prefer that their complaint be taken up by the police or relevant authority. The good news is that early intervention by counsel can assist with getting the police and Crown Prosecution Service (CPS) to take matters beyond where they may otherwise have stopped. Below are examples of how clients can be assisted:

If the police refuse to take action against a potential defendant, the first port of call is an effective series of representations under the Victim’s Right to Review Scheme. Counsel can make focussed submissions on behalf of a layperson showing how the law has been breached and often being able to correct misinterpretations of law or the application of the law by police officers.

If the case is still not taken on by the police or CPS, then the investigation can be pursued privately. This involves counsel working with private investigators, usually ex Metropolitan Police officers and expert witnesses to collect evidence by way of section 9 witness statements and exhibits. When this is done an ‘evidence pack’ and note on the facts and law from counsel can be presented to the Police and CPS in order to demonstrate that the tests under the Code for Crown Prosecutors have been fulfilled and a prosecution should be implemented.

A private prosecution can also be launched and taken over by the CPS. Submissions can be made to the Court that a judicial observation could be made that this is properly brought case. If such observations are forthcoming a letter of representation can be drafted to the Attorney General. This can result in the private prosecution being taken over by the CPS and continued.

Of course if none of the above is successful then the private prosecution can continue regardless, the client having suffered little in the repeated representations to the state. 

Private Prosecution and Direct Access 

As far as private prosecutions are concerned, as a litigation qualified Direct Access Barrister there is virtually no noticeable difference in the conduct of the preparation of the case by counsel direct as opposed to going through a solicitor. There is however a large potential cost saving- compared to a Solicitor’s firm I have relatively low overheads and can reflect that in my rates. Also the client will be dealing directly with the person who will be presenting their case in Court. They can also be assured that their Barrister is dealing with every aspect of the case and will therefore have an encyclopaedic knowledge of the case and will be easily accessible throughout the prosecution procedure, rather than being instructed by a solicitor after much of the preparation work has already been done.

Whilst I am still instructed by solicitors in private prosecution cases and enjoy an excellent working relationship with expert solicitors in this field, some clients prefer a single point of contact; this is one of the benefits of a client instructing me directly.

Further details on the benefits of and process of bringing a private prosecution can be found at www.private-prosecution.co.uk.

Quentin Hunt is a barrister at 2 Bedford Row