Private Prosecutions - the new commercial reality
"Businesses can no longer rely on the police for support when they become victims of crime" says Jeremy Asher, Head of Fraud and Business Crime at Ashfords LLP.
The figures Jeremy has collated recently are eye opening.
Under a Freedom of Information Act request the Financial Times has 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.
It has also been reported that Action Fraud, which acts as a sifting organisation into which all fraud and Computer Misuse Act offences are reported, now has an algorithm which automatically rejects cases worth less than £100,000.
Recently a private prosecution was successfully brought where the fraud alleged was valued at £88 million, the CPS having previously refused to act.
There are concerns over the quality of the work once cases get to Court too. In 2012 over 400 criminal trials were handled so badly by the public authorities they were forced to pay over £1.2 million in wasted costs orders. Between 2015 and 2016 one in eight (over 12,600) Crown Court cases were discontinued after a not guilty plea had been entered.
The failings have also been highlighted in the recent media coverage of 4 trials that have been dropped by the CPS either before or during the trial due to the failure to either investigate or comply with the strict rules governing procedure in the criminal courts.
The limited resources available to public investigators is often further exposed by the use of increasingly sophisticated technology available to individuals, which makes it easier for criminals to commit ever more complex crimes, but more difficult and more time consuming to investigate them.
Further, terrorism, threat to life incidents and disasters such as Grenfell put a tremendous strain on already limited resources with detectives being frequently redeployed.
"There is strong anecdotal evidence to suggest that unless there are genuine public interest angles to a particular case, such as where public money is involved, the police will not assist."
This poses an enormous risk to business where speed of investigation is vital if offenders are to be caught.
"The Police talk about the "Golden Hour" being the most important. Luckily we have the expertise to trace assets and find individuals within hours of an event, anywhere in the world. I have spoken to 200 businesses in the past 6 weeks on the subject of how they can investigate offences such as fraud, theft of data and computer hacking. Speed is crucial - every minute counts and sadly the Police don't have the ability to respond quickly enough."
Ashfords LLP undertake prosecutions on a national scale for a number of public bodies such as Local Authorities and Central Government. Their prosecutors have a vast amount of experience of prosecuting complex cases such as Fraud; Money Laundering; perverting the course of justice, and complicated regulatory offences. They have brought more than 500 prosecutions in the past 3 years.
They have access to highly experienced teams of investigators with extensive backgrounds in elite police departments such as the Metropolitan Police 'Flying Squad'. This not only ensures that no stone goes unturned but also that all evidence collected satisfies the high standards required by the criminal courts and the ABI guidelines on the instruction and use of Private Investigators.
The legal basis for bringing a Private prosecutions has been enshrined in statute and can be found under Section 6 (1) of the Prosecution of Offences Act 1985 which provides that any person can institute or conduct criminal proceedings in England and Wales.
Private prosecutors may apply to the Court for the payment of any expenses incurred by them in the proceedings so long as the case is properly brought, win or lose, even though the Courts frequently order defendants to pay at least a portion of the costs of bringing the case.
The criminal Courts have powers to order compensation and the confiscation of assets. Ashfords also use the Civil courts to obtain Freezing Orders and Orders for the discovery of documents to aid their investigations.
Whilst the Police and Crown Prosecution Service may no longer be willing or able to deal with a case the option of a private prosecution is very much available to businesses and individuals. This combined with the ability to recover the costs of investigation may make private prosecution a viable commercial alternative to bringing civil proceedings.