Swift Justice: Lockdown spurs on private prosecution market

October 3, 2020

3 min read

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What's going on here?

Clyde & Co are the latest player in the private prosecution game, announcing they will now privately prosecute and defend “civil” crimes, such as fraud, regulatory offences, and IP infringements.

What does this mean?

A private prosecution is exactly what it says on the tin. It’s where an individual or entity, not acting on behalf of a state prosecutor (such as the CPS), conducts a prosecution. 

The right to bring a private prosecution in England & Wales is preserved in s6 of the Prosecution of Offences Act 1985. But the sector is self-regulated by the Private Prosecutors Association and its Code for Private Procurators, produced in 2019  “to provide a benchmark setting out best practice”.

In recent years demand for private prosecutions has grown due to limited resources of British courts, and a growing appetite for speedy justice against white collar criminals. 

As COVID-19 shut down the country, the existing backlog of court cases grew even larger. The number of outstanding crown court cases reached 43,676 at the end of July, with some cases being delayed until as late as 2022. Unfortunately, resources to investigate and prosecute complex white collar crime like fraud schemes and regulatory transgressions are increasingly stretched, pushing them to the back of the long queue. Lockdown has also provided the perfect environment for scammers to get to work, as companies enforce digital home-working en masse.

What's the big picture effect?

Clyde & Co will join a growing number of British law firms and advocates’ chambers in offering clients their services in the private prosecution market. The firm will draw on its cohort of litigators, in-house accountants and business intelligence workers to “provide access to justice where these crimes might otherwise be overlooked”.

For example, when Swiss oil and gas giant Allseas was defrauded of 100m EUR, the CPS refused to prosecute due to a lack of evidence. In 2018 Allseas took matters into its own hands, and secured an eight-year custodial sentence for fraudster Paul Sultana in a private prosecution.

What’s more, in some circumstances, a private prosecution makes more commercial sense than civil litigation. 

Firstly, private prosecutions are almost always quicker and cheaper than civil litigation. Where a victim of crime is successful in achieving a conviction, they may apply for legal and investigative costs from government funds, which would otherwise be unavailable in civil litigation. What’s the point in pursuing an expensive civil case if the defendant doesn’t have the means to pay compensation or reimburse you for your costs? 

Secondly, criminal prosecutions can be better at deterring scammers from messing with your business. Securing a criminal conviction for the accused may mean they are blacklisted from government contracts, and banned from being a company director. When Allseas put Sultana behind bars, the company president said “we felt it was in the public interest to pursue the case against Mr Sultana to protect other potential victims by ensuring that he is not free to repeat his crime”. 

Coronavirus has proved itself yet again as the perfect turning point for lawyers to adapt, and capitalise on the emerging consequences of nationwide lockdown. We are all too familiar with the growing strain on state courts, so will private prosecutions provide the key to helping alleviate some of this pressure, whilst simultaneously producing a new weapon in the commercial law offering?

Report written by Rory Crawford

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