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Private Prosecutions - myth busting

Having presented our talk Private Prosecutions - the new commercial reality to 200 or so businesses in the past 2 months, we thought it would be a good idea to draw together some of the frequently asked questions (FAQs) we have been asked to help bust those myths surrounding private prosecutions.

Question 1

Isn't it more difficult to bring criminal prosecutions rather than civil cases because the evidential standard required is higher?

The answer to that is no - it's a red herring to suppose that just because the case is being taken to the criminal courts it is harder to prove.  There are instances where defendants deliberately try to make life difficult, but usually in fraud or data theft cases there is a "smoking gun" email somewhere.  Once you have that then it's easy enough to link the suspect.  The law isn't particularly difficult either.  Fraud requires dishonest intent, the test for which is based on the standards of an ordinary person.  Computer Misuse Act offences only require evidence that the computer in question has been accessed without consent.  In my experience it's more difficult to defend a fraud case than to prosecute one.   

Question 2

Can the criminal courts order compensation?  Can I get my stolen money back?

Yes they can order compensation.  The thing to bear in mind is that the criminal courts are geared to punishing criminal behaviour.  Within that there are various mechanisms to recover stolen funds, such as Compensation Orders where lengthy terms of imprisonment are threatened unless the money is paid back.  If the funds aren't available then orders can be imposed under the Proceeds of Crime Act that allow the Courts to revisit the case if the offender later makes or comes into money.  Such orders can be very effective.

Question 3

What about recovering legal costs?

Central Government funds are available for private prosecutors to be reimbursed out of, for their fees, win or lose, provided the case passes the evidential and public interest tests required, is not vindictive and the fees charged are reasonable.  This is a very attractive option when compared to civil cases where it is frequently difficult to recover legal costs incurred.

Question 4

Can private prosecutors take on cases where the Police have previously refused to help?

The answer to that is yes!  The Police generally do not take on cases worth less than £100,000 unless there is a significant public interest angle to the case, and even then they frequently choose not to act.  There was a recent successful private prosecution of a fraud valued at £88 million.

Question 5

Is there a code of conduct for private prosecutors?

The answer is that it is on its way.  The Private Prosecutors' Association is developing just such a code to be published in Autumn 2018, based on similar lines to the Code for Crown Prosecutors.  To be safe ensure you only instruct Solicitors who are members of that organisation - they will be prepared to adhere to that code of conduct..

Question 6

Are there any time limits to bring a fraud or data theft case?

No there aren't.  Computer Misuse Act offences, Fraud or Theft have no time limits attached to them.  If you are thinking about other types of offences then it is best to check with a lawyer as soon as you can because some less serious types of offences have 6 month time limits attached to them.

Question 7

What if the Police have previously investigated and decided to caution the offender.  Is there anything a private prosecutor can do to bring further proceedings?

The answer to that is no.  It would be an abuse of process to bring a prosecution against somebody who has already been cautioned for the same offence.  However the caution might assist you to bring a civil claim, but that might be a more expensive and long winded route.  If you are thinking of speaking to the Police about a fraud or data theft case then it might be best to speak to an independent lawyer first because private prosecutions and investigations can be more effective than simply reporting a case to the Police.

Question 8

But isn't it better to go the Police first?

The answer is it depends.  If there is a risk to life or injury then the answer to that most certainly is yes.  However the Police prioritise such cases over fraud and data theft cases and may not be able to act quickly enough to recover your assets.  A private prosecutor with a good network of specialist investigators can  work faster and use the latest technology to trace and thereafter freeze assets.  When you discover that money has been taken from your bank account speed is essential - the faster you act the better chance you have of getting your money back.  The Police are under resourced and over stretched so may not be able to help you quickly enough.  Just remember that the Financial Times recently revealed that the number of reported fraud offences have risen from 142,991 in 2011 to 641,539 in 2016 yet in the same period white collar crime prosecutions fell 26% below the number prosecuted in 2011. Also it has been reported that the Police are currently short of 4,000 detectives.

Hopefully these FAQs will help you.  Feel free to call Jeremy Asher or Robert Readfern should you have any queries.

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