Private prosecutions — the whys, whens and hows
Jack Walsh, a lawyer at Edmonds Marshall McMahon, explains his work in private prosecutions.
What is a private prosecution?
The right to bring a private prosecution has been described by the Supreme Court as “a safeguard against wrongful refusal or failure by public prosecuting authorities to institute proceedings”. A private prosecution can also be an effective way for a victim of crime or an interested body to pursue a criminal prosecution without the delays and inefficiencies of traditional public bodies, such as the Crown Prosecution Service or local authorities. This is particularly so in times of restricted budgets.
Private prosecutions are subject to the same rules and are carried out in exactly the same way as a case brought by a public authority. Edmonds Marshall McMahon (EMM) applies the same high standards as public bodies when determining if there is sufficient evidence for prosecution and if prosecution is in the public interest, and also to its duties of disclosure of unused material. A private prosecutor will, however, have far more input into and control over the process than if they merely report an offence to a public authority, which then takes it out of their hands, if the matter is pursued at all.
What are some examples of private prosecutions where you’ve acted?
EMM acts for victims of almost all types of offence, ranging from frauds (including confiscation proceedings for the largest ever private fraud prosecution) and corruption, to criminal damage and harassment. In particular, EMM frequently investigates and conducts prosecutions in cases of perjury and perverting the course of justice in civil claims, including family court proceedings. We also represent victims of impropriety by the police who are understandably wary about dealing with public law enforcement agencies.
Many private prosecutions in which we act have an international element; quite often any combination of the victim, offender and witnesses are based abroad. We have even dealt with overseas law enforcement agencies and foreign courts.
What outcomes can people obtain?
A prosecution is different from a civil claim for damages, although the criminal courts can make a confiscation order to deprive the defendant of any benefit obtained as a result of crime and can order that victims are compensated. Primarily, a criminal prosecution is concerned with achieving justice through securing a conviction and sentence for the offender, which has a deterrent effect on that person and others. In that way, a private prosecution serves the public interest in the declaring and upholding of standards of conduct in civilised society. The offender would receive a criminal record and the outcome of the trial may be publicised and is very easy to understand.
The criminal courts also, however, possess a range of additional powers that often surprises our clients. These include the ability to restrain a defendant’s assets prior to trial, to impose restraining orders, for example to prevent harassment, or to disqualify an offender from holding a directorship.
How do costs work in private prosecutions?
There is no Legal Aid for private prosecutions and they have to be funded privately. Some prosecutions are necessarily complex and can be expensive, ranging from £6,000 upwards. In the event of a conviction, costs can be sought from the offender. However, given that a reasonably-brought private prosecution serves the public interest as a whole, Parliament provides that a private prosecutor (in most types of cases in which EMM acts) can claim back his or her reasonable costs at the end of the case from ‘central funds’ (i.e. the state), even if there is an acquittal as long as the prosecution was properly brought and there has been no misconduct on the part of the prosecutor. In fact, the court will order that such costs be paid from central funds, unless there is a good reason not to do so. Typically, EMM recovers around 85% of our clients’ costs.
How quickly can a private prosecution be completed?
Each case is unique and some cases require a great deal of preparation to reach the required evidential standard before criminal proceedings can start. It is, naturally, very important to present the strongest possible case. In a fairly straightforward case in the Magistrates’ Court, even if there is a trial, the case should be concluded within around 6 months from the issuing of the summons. In a similar Crown Court case a typical timeframe might be double that.
You can find out more about Jack’s work on the EMM website.
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