Over the last five years City of London Police have had their budget reduced by 15% arguably leading to a reduction in the number of white collar crime investigations. As with the reduction in raids by the SFO this year, the stretch on resources for those responsible for investigating white collar offences is increasing while wrongdoing by corporates and individuals is ever present.
Given the increasing inability of traditional prosecution agencies to dedicate the time or resources required to adequately investigate and commence criminal proceedings, private prosecutions provide an attractive alternative means to achieve efficient and effective justice.
A private prosecution can be brought by any individual, victim, interested party, organisation or company. The right to bring a private prosecution is provided in section 6(1) of the Prosecution of Offences Act 1985. This historic right of a private individual or company to bring a private prosecution remains an important safeguard against the failure or inability of a public prosecuting authority to bring proceedings, but what does bringing a private prosecution entail?
Private prosecutions involve a complexity not found in public prosecutions. Expert lawyers in this field can assist the private prosecutor in deciding whether to commence a private prosecution, considering whether the case meets the evidential test and whether the prosecution is in the public interest. There are also clear rules on disclosure which must be adhered to by the private prosecutor, adhering to these rules can be complicated and onerous. There are considerations over whether material meets the disclosure test and questions surrounding legal professional privilege.
Lawyers acting for a private prosecution should conduct an initial review of the suitability of the case for a private prosecution; advise on evidential sufficiency and public interest considerations and advise on further lines of investigation and the preparation of evidence. They should manage disclosure obligations; deal with legal arguments and should manage the conduct of the case from first appearance through to sentencing and any subsequent compensation or confiscation proceedings.
There are numerous risks involved in bringing a private prosecution. The Director of Private Prosecutions could take over a private prosecution with a view to continuing the proceedings as a public prosecution, or could chose to discontinue it. A private prosecution can also be stayed where it is found that to continue the prosecution would amount to an abuse of process. Prosecutions which fall into this category may not only lead to a costs award against the prosecutor but may also prevent the prosecutor recovering their costs. An unsuccessful private prosecution may also result in the victim incurring negative publicity and reputational impact. The likelihood of these risks occurring can be minimised by the individual or company instructing a lawyer who understands and can manage the risks involved.
Importantly, lawyers dealing with a private prosecution have a duty to act as ministers of justice and therefore to the same high standards expected of a public prosecutor. Commencing and seeing through a private prosecution is not to be undertaken lightly and those seeking to pursue such a route should seek advice from experienced lawyers at an early stage.